
Before the Commission created by Act of Congress, approved 

January 29, 1877, 



IN THE MATTER 




OF THE 



ELECTORAL VOTES 



OF THE 



STATES OF FLORIDA AND OREGON. 



ARGUMENTS OF 



GEORGE HOADLY, 



OF CINCINNATI, OHIO, 



February 8 and 21, 1877 



" Victrtx causa Diis placuit, sed victa Catoni." 



CINCINNATI: 

ROBERT CLARKE & CO.. PRINTERS 

1877. 




Class TK 5Zb 

m 1121 



Before the Commission created by Act of Congress^ approved 

January 29, 1877, 



IN THE MATTER 



OF THE 



ELECTORAL VOTES 



OF THE 



STATES OF FLORIDA AND OREGON. 



ARGUMENTS OF 



GEORGE BCOADEY, 




OF CINCINNATI, OHIO, 



February 8 and 21, 1877. 



" Victrix causa Diis pZacuii, sed victa Catoni." 



CINCINNATI : 
ROBERT CLARKE & CO., PRINTERS 

1877. 




1877 
• H 7 



Co 



IN THE MATTER 



OF THE 



ELECTORAL VOTE OF THE STATE OF FLORIDA 



Upon the 8th of February, 1877, in the Supreme Court room, 
Mr. Hoadly made the following argument upon the question 
of the disability of Frederick C. Humphreys to cast one 
of the electoral votes of the State of Florida. 



May it please the Commission : — It has been es- 
tablished by the proof that Frederick C. Humphreys 
held the office of shipping commissioner by appoint- 
ment of the circuit court of the United States in Flor- 
ida. It has been established by the proof that before the 
November election he attempted to divest himself of 
this office by forwarding to the city of Newark, in the 
State of Ohio, a paper resignation of that office, and 
by receiving from the judge, not the court, acting not 
in Florida but in Ohio, an acceptance of that resigna- 
tion. 

The powers of this office are derived from section 
4501 of the Revised Statutes: 

The several circuit courts within the jurisdiction of which there 
is a port of entry, etc.. shall appoint, etc. 

The resignation can not be made except to the same 
authority that appointed. The resignation could not, 



[4] 

therefore, be made by letter addressed to the judge in 
Ohio. The acceptance of the resignation could not 
emanate from the judge in Ohio. The court has not 
since held a session., The court which clothed the 
officer with the power has not relieved him from the 
performance of the duty, and I respectfully submit that 
this proposition is sustained by the cause recently de- 
cided in the Supreme Court of the United States, the 
opinion in which has just been placed in my hands, the 
case of Badger and others v. The United States on the 
relation of Bolton, a copy of the decision in which will 
be furnished to your honors. It is also, I am advised, 
according to the practice of the Government, as shown 
by Document No. 123, Twenty-sixth Congress, second 
session, House of Representatives, and by the second 
volume of the Opinions of the Attorneys-General, pages 
406 and 713. Therefore, considering that Frederick 
C. Humphreys had been duly appointed to this office, 
that by the laws of the United States it is shown to be 
an office of profit and trust, is by the Revised Statutes 
so made ; considering that the judge of the circuit 
court acting in Ohio was not the circuit court and was 
not the power that clothed him with the authority, and 
could not relieve him from the performance of the duty 
with which he had been intrusted by another power ; 
considering that the judge of the circuit court of the 
United States acting in chambers could not in Ohio re- 
lease him from a trust with which the court not in 
chambers clothed him in Florida; considering these 
circumstances, we respectfully submit that he held an 
office of profit and trust on the day of the November 
election for electors of President and Vice-President, 
and that therefore the vote that he cast as an elector in 
December can not be counted. 

The provision of disqualification contained in the 



[5] 

first section of the second article of the Constitution I 
will read, that J may have freshly before my own mind 
the text in reference to which this debate must proceed. 
There is nothing in the statute with regard to the re- 
signation of this office at all. Having accepted the 
office, given bond, and taken oath to perform its duties, 
we submit that he could not divest himself of it by his 
own act. I will read the whole section which authorized 
the appointment : 

The several circuit courts within the jurisdiction of which there 
is a port of entry which is also a port of ocean navigation shall 
appoint a commissioner for each such port which in their judg- 
ment may require the same, such commissioners to be termed 
shipping commissioners ; and may, from time to time, remove 
from office any commissioner whom the court may have reason 
to believe does not properly perform his duties, and shall then 
provide for the proper performance of his duties until another per- 
son is duly appointed in his place. 

I submit that where the legislative body have created 
an office, and the judicial authority has, according to 
the law, clothed a person with the trusts of that office, 
public policy requires that it should not be held at his 
will and pleasure, it being an office of public conveni- 
ence and necessity, for the performance of which bond 
is required to be given, and the filling of which may be 
at all times essential to the performance of public duty. 

Turning to the constitutional provision, I read: 

Each state shall appoint, in such manner as the Legislature 
thereof may direct, a number of electors equal to the whole num- 
ber of Senators and Representatives to which the State may be 
entitled in the Congress ; but no Senator or Representative, or 
person holding an office of trust or profit under the United States, 
shall be appointed an elector. 

The form is mandatory; it is negative; that is, 
the provision of disqualification is negative. It is 



[6] 

coupled with the grant of power by the word cc but/' 
which, together with the words of the context, shows 
that it is a limitation, a qualification, a diminution of 
the grant of power. The grant of power is to the State, 
not to the people of the State, but to the State as a legal 
entity, as an organized body, corporate in its character ; 
and to this grant thus given to the State is attached a 
limitation introduced bywords of exception cc but no 
Senator or Representative shall be entitled." It is 
clothed in negative language. " Negative language," it 
is said, "will make a statute imperative; and this is 
incontestable. Negative words will make a statute im- 
perative. Affirmative words may ; negative must," as 
is stated in Sedgwick on Constitutional and Statutory 
Law, page 370 ; and Cooley on Constitutional Limit- 
ations, 75; Potter's Dwarris on Statutes, 228; Rex v. 
Justices of Leicester, 7 Barnewall & Cresswell, 6, 12. 

But what is of more consequence than the form, al- 
though the form is indicative of the purpose of the au- 
thors in using the words of substance, the provision is 
in substance imperative, and admits of no evasion. 
Lord Mansfield distinguishes mandatory from directory 
clauses in statutes by reference to " circumstances which 
are of the essence of a thing required to be done" as 
distinguished from circumstances which are £C merely 
directory." Rex v. Loxdale, 1 Burr. 447. 

Having relation, as Lord Mansfield says, to that 
which is essential as different from that which is merely 
directory, I suggest that several circumstances show that 
our fathers, who framed this provision, considered it 
essential. It seems to have been first adopted into the 
Constitution on the motion of Mr. Gerry and Mr. 
Gouverneur Morris, in a slightly different form from 
that in which it now appears. On July 19, 1787, Mr. 
Gerry and Mr. Gouverneur Morris moved " that the 



[7] 

electors of the Executive shall not be members of the 
National Legislature, nor officers of the United States, 
nor shall the electors themselves be eligible to the Su- 
preme Magistracy. Agreed to nem. con." (Madison 
Papers, 343.) 

On September 6, Mr. Rufus King and Mr. Gerry 
moved to insert in the fourth clause of the report, after 
the words cc may be entitled in the Legislature," the 
following : 

But no person shall be appointed an elector who is a member 
of the Legislature of the United States, or who holds any office 
of profit or trust under the United States. Madison Papers, 

5 J 5- 

It passed nem. con. It was the unanimous will of 
our fathers, therefore, that this disqualification should 
attach ; that it should attach in the nature of an excep- 
tion or proviso to the grant of powers to the States to 
elect electors ; that it should attach by disqualification 
of the persons who might be appointed electors ; that 
it should attach by disqualification of the State in the 
appointment of electors. The State is disqualified from 
appointing, the elector from accepting the trust. The 
disqualification, therefore, is imposed both upon the ap- 
pointing power and upon the candidate, and the effect 
of such disqualification, it is respectfully submitted, is 
to render the action of the State in the appointment 
null and void. The disqualification is of the action of 
the State ; of the State in all its departments ; of the 
voters of the State as well as of the government of the 
State. The disqualification binds every citizen of the 
State, every functionary of the State, and attaches to and 
qualifies and limits the corporate action of the State, 
and is equivalent to saying " the State may appoint 
from among the number of qualified persons." I sub- 
mit that the substance and real meaning of the sentence, 



[8] 

although it is cast in the negative and inhibitory form, 
is that from among the number of those who do not 
occupy positions of profit and trust the State may ap- 
point electors. The object of our fathers in introduc- 
ing, without dissent, this provision, was to prevent the 
Federal power, the officers controlling Federal agencies, 
from continuing their power through the influence of 
the offices of trust with which they were clothed for 
federal and State benefit. It was not merely to pro- 
tect the State in which the candidate might be elected 
from the intrusion of a Federal office-holder into the 
electoral office, but it was to protect every other State, 
each State, all the States, and the people of each and 
every State by a mutual covenant in the form of a lim- 
itation of power, that no State should appoint a dis- 
qualified person. Each State, therefore, through the 
agencies of the Federal Government, is entitled to be 
protected from the illegitimate use of Federal power 
in any State. Delaware, Oregon, the smallest of our 
States, are entitled to ask, through their Senators and 
Representatives, that the Federal power shall enforce 
this provision for their protection against the corrup- 
tion of the elections in the larger States by means of the 
election of disqualified persons. 

If it be said — but I do not think it will — that the rem- 
edy which our fathers provided for the evil which they 
apprehended has but little value, and that their forecast 
was not great, so much the more reason for rigidly in- 
sisting upon such value as it possesses now; for surely 
time has not proved, experience has not shown that the 
evils which our fathers apprehended, as they clearly 
manifested and showed by the text of the provision it- 
self, are any less than they supposed they would be. 
The influence of Federal power through the candidacy 
of Federal officers for electors is explicitly here pro- 



[9] 

hibited. The object is to diminish and prevent and 
restrict Federal interference in the election of electors. 
It is the duty, not of the States, in purging the votes 
of electors, but of the Federal Government, for the pro- 
tection of each State, to insist upon and carry into full 
force this provision. 

Again, the occasions upon which this provision has 
been considered during our history emphasize this sug- 
gestion as to the purpose of our fathers in adopting it. 
In 1837 five postmasters, or five persons bearing the 
same names as certain postmasters, were appointed or 
attempted to be appointed electors. Mr. Clay sub- 
mitted, on January 27, 1837, this instruction, which 
he asked to be given to the joint committee of the 
Senate and House appointed to ascertain and report a 
mode of examining the votes for President and Vice- 
President of the United States, namely : that they 
should 

" inquire into the expediency of ascertaining whether any votes 
were given at the recent election contrary to the prohibition con- 
tained in the second section of the second article of the Constitu- 
tion ; and if any such votes were given, what, ought to be done 
with them ; and whether any and what provision ought to be 
made for securing the faithful observance, in future, of that sec- 
tion of the Constitution." 

The members of this committee on the part of the 
Senate were Felix Grundy, Henry Clay, and Silas 
Wright ; on the part of the House, Francis Thomas, 
Churchill C. Cambreleng, John Reed, Henry W. Con- 
nor, and Francis S. Lyon, the latter of whom, I was in- 
formed in Mobile a few days since, is the only survivor, 
now living in Alabama at a great age, and deeply inter- 
ested in this discussion. Mr. Grundy submitted a re- 
port of the committee on February 4, from which I 
desire to read the following quotation : 



[10] 

That the short period at which they were appointed, before 
the day on which the votes for President and Vice-President of 
the United States have to be counted, has prevented them from 
investigating the facts submitted to their examination as fully as 
might have been done had more time been allowed. The corres- 
pondence which has taken place between the chairman of the 
committee and the heads of the different departments of the 
executive branch of the government accompanies this report, 
from which it appears . . . that in two cases persons of the 
same names with the individuals who were appointed and voted 
as electors in the State of North Carolina held the office of 
deputy-postmaster under the General Government. 

I suggest, in passing, that the course taken by this 
committee of the most eminent men of that generation 
indicates that I am right in the suggestion that the duty 
was then considered, as we now claim it should be, as 
imposed on the Federal power to take testimony so as 
to ascertain the facts and by Federal agencies enforce the 
prohibition for the protection, not merely of the State 
in which the disqualified' elector has voted, but of the 
States in which the disqualified elector has not voted for 
the election of President and Vice-President, and thus 
that it concerns all the States, and relates to the deepest 
and most vital interests of all the States. The disquali- 
fication can not therefore be permitted to be evaded in 
one State without a blow struck at every other State. 

I will continue reading the report : 

It also appears that in New Hampshire there is one case ; in 
Connecticut there is one case ; in North Carolina there is one 
case ill which, from the report of the Postmaster-General, it is 
probable that at the time of the appointment of electors in these 
States respectively the electors or persons of the same name were 
deputy-postmasters. The committee have not ascertained whether 
the electors are the same individuals who held or are presumed 
to have held the office of deputy-postmasters at the time when the 
appointment of electors was made ; and this is the less to be re- 
gretted, as it is confidently believed that no change in the result 
of the election of either the President or Vice-President would 



[11] 

be affected by the ascertainment of the fact in either way, as five 
or six votes only would, in any event, be abstracted from the 
whole number, for the committee can not adopt the opinion enter- 
tained by some, that a single illegal vote would vitiate the whole 
electoral vote of the college of electors in which it was given, 
particularly in cases where the vote of the whole college has been 
given for the same persons. 

From this sentence it appears that at that time, forty 
years ago, the question in debate was whether the single 
illegal vote vitiated more than the vote itself, and the 
committee were of opinion that it did not. 

The committee are of opinion that the second section of the 
second article of the Constitution, which declares that " no 
Senator or Representative, or person holding an office of trust or 
profit under the United States, shall be appointed an elector," 
ought to be carried, in its whole spirit, into rigid execution, in 
order to prevent officers of the General Government from bring- 
ing their official power to influence the elections of President and 
Vice-President of the United States. This provision of the 
Constitution, it is believed, excludes and disqualifies deputy- 
postmasters from the appointment of electors ; and the disquali- 
fication relates to the time of the appointments, and that a resig- 
nation of the office of deputy-postmaster after his appointment as 
elector would not entitle him to vote as elector under the Consti- 
tution. 

I submit that when it appears that two such minds as 
those of Henry Clay and Silas Wright, statesmen of 
such opposite political education and modes of thought, 
concur in a statement with reference to the reasons and 
meaning of the Constitution, it comes to us with a 
weight and with an authority that is not to be gainsaid. 
Fortunately or unfortunately, however, our American 
habit of not bridging chasms until we reach them pre- 
vented any action by Congress such as Mr. Clay sug- 
gested ; and accordingly the question represents itself 
to-day without any further elucidation by legislation 
than it had then. 



[ 12 ] 

If we are right in our proposition with regard to the 

facts, Humphreys held the office at the time when he 

cast his vote. The only two questions, therefore, which 

present themselves for debate are, first, did he hold at 

the time an office of profit and trust ; secondly, as to the 

effect of the holding, provided the fact has been shown. 

As the questions thus present themselves, we are not 

concerned to consider the authorities decided in cases 

of resignation after the election, except so far as they 

indicate the views of courts with regard to the effect of 

the disqualifying facts. In Rex v. Monday (Cowper, 

page 536), Sergeant Buller, afteward Mr. Justice Buller, 

states the rule thus, arguendo: 

Two requisites are necessary to make a good election : first, a 
capacity in the electors ; second, a capacity in the elected ; and 
unless both concur the election is a nullity. . . . With respect 
to the capacity of the electors, their right is this : They can not 
say there shall be no election, but they are to elect. Therefore, 
though they may vote to prefer one to fill an office, they can not 
say that such a one shall not be preferred, or by merely saying 
" We dissent to every one proposed," prevent any election at all. 
Their right consists in an affirmative, not a negative declara- 
tion. Consequently there is no effectual means of voting against 
one man but by voting for another ; and even then, if such other 
person be unqualified and the elector has notice of his incapacity, 
his vote will be thrown away. 

Such is the well-settled English rule, as affirmed by a 
multitude of cases since. 

Lord Chief-Justice Wilmot, in the same volume, note 
to page 393, in the case of Harrison v. Evans, dis- 
cussing the statute of 13 Charles II, which enacted that 
no person should be elected into any corporation-office 
who had not received the sacrament within a twelve- 
month preceding his election, and in default of doing 
so the election and choice should be void, said : 

The provision is not only addressed to the elected and a pro- 
vision upon them, but a provision laid down upon the electors 



[13] 

if they have notice. The Legislature has commanded them not 
to choose a non-conformist, because he ought not to be trusted. 
Consequently, with respect to any legal effect of operation, it 
is as if there had been no election. 

So in a multitude of cases in England since, as I 
said, which need not be here more particularly referred 
to, but with a reference to which your honors will be 
furnished in my brief. The same doctrine is applied 
in many American cases also, and it is respectfully sub- 
mitted that there is no case to the contrary. Amer- 
ican cases have differed widely upon the question 
whether the non-eligibility of the candidate receiving 
the largest vote has the effect to elect the next highest 
competing candidate; but no American case, it is re- 
spectfully submitted, treats the election of one who at 
the time was non-qualified and who attempted to act, as 
other than an absolutely null appointment. To this 
effect is the case of Searcy v. Grow, 15 California, 118, 
which was a contest for the office of sheriff of Siskiyou 
county, where Grow was returned as having been elected 
and was found to be the holder of an office of profit 
and trust under the constitution of California, to which 
a disqualification was attached by the constitution, and 
who had resigned after the election and before induction 
into the shrievalty, but was holding the disqualifying 
office at the time of the election. Mr. Justice Baldwin, 
Cope, J., and Field, C. J., concurring, said : 

The people in this case were clothed with this power of choice. 
Their selection of a candidate gave him all the claim to the office 
which he has. His title to the office comes from their designa- 
tion of him as sheriff. But they could not designate or choose a 
man not eligible — that is, not capable of being selected. They 
might select any man they chose, subject only to this exception : 
That the man they selected was capable of taking what they had 
the power to give. We do not see how the fact that he became 
capable of taking office after they had exercised their power can 



[14] 

avail the appellant. If he was not eligible at the time the votes 
were cast for him, the election failed. 

Of course your honors will see the pertinency of this 
quotation to other questions that may arise in other 
cases, and I am compelled to read portions of £he opin- 
ion which do not refer to the particular case in hand f in 
order to use intelligently those portions that do : 

If he was not eligible at the time the votes were cast 
for him, the election failed. We do not see how it can be as- 
sumed that by the act of the candidate the votes which, when 
cast, were ineffectual because not given for a qualified candidate, 
became effectual to elect him to office. 

So in the case of the State of Nevada on the relation 
of Nourse v. Clarke (3 Nevada, $66-,) which, it is 
true, may be treated as obiter dictum^ because it was 
found there that the resignation had been effectually 
made before the election, the court discussed this ques- 
tion with this result ; " That a person holding the office 
of United States district attorney on the day of election 
was incapable of being chosen to the office of attorney- 
general of the State, because of a provision in the State 
constitution to the effect that no Federal office-holder 
'shall be eligible to any civil office of profit under this 
State.' ' Which word eligible,' says this learned court, 
' means both of being legally chosen and capable of 
legally holding.' " 

The word here is il appointed;" that no person hold- 
ing an office shall be appointed an elector. Who ap- 
points ? The State appoints ; not the voters of the 
State ; not the Legislature of the State ; not the Gov- 
ernor of the State; but the State appoints. The State 
appoints from among qualified persons; or, which is 
the same thing, the State appoints, but may not appoint 
a disqualified person. Now, the State does appoint a 



[15] 

disqualified person, and the disqualification is one 
contained in the same constitutional provision as a qual- 
ification, limitation, restriction of the same constitu- 
tional clause which gives the right to appoint, a part 
of the same sentence attached to the grant of power. 
The appointment refers to the act of the State, the act 
of the State on the day which Congress has named as 
the day upon which only the choice of elector can be 
made. On that day the State shall appoint, but shall 
not appoint a person not legally qualified to hold the 
office. 

In Commonwealth v. Cluly ($6 Pennsylvania State 
Reports, 270) the election went back to the peo- 
ple. In the Indiana cases the next highest competing 
candidate was declared elected — going beyond the rule 
we ask to be applied to the Florida electoral college. 
In Searcy v. Grow, I suppose the result of the contest 
was to unseat the disqualified person without seating the 
next highest competing candidate. In all the cases 
which are commented upon in the decision of Gulick 
v. New, in 14 Indiana, 93, and by the various authori- 
ties and text-writers on this subject, no one, I submit, 
will be found which favors the idea that the election of 
one constitutionally disqualified can by any possibility 
result, if it do not elect the next highest candidate, in 
anything else than a failure to elect; and Congress by 
its legislation on the subject has indicated its purpose in 
the same direction. Thus the one hundred and thirty- 
third section of the Revised Statutes provides for a case 
of vacancy occurring when the college of electors shall 
meet to cast their votes. Section 134 provides for a 
case where the State shall fail to elect ; that, where the 
State shall fail to elect on the day provided, the electors 
may be appointed on a subsequent day in such manner 
as the Legislature of such State may direct. These 



[16] 

provisions of law, which have been in force since the 
act of January 23, 1845, in that statute were attached, 
and not separated as in the Revised Statutes and thrown 
into two separate sections ; these two provisions of law, 
which were then attached to each other, indicate the 
meaning of the law-makers of this generation and the 
last to furnish a remedy in case of the election of one 
disqualified under the Constitution. 

If it be shown that the State of Florida has acted 
under the one hundred and thirty-fourth section of the 
Revised Statutes, then the vote of Florida is not di- 
minished by reason of the fact that on the 7th of No- 
vember one of the persons voted for was disqualified. 

Sec. 134. Whenever any State has held an election for the pur- 
pose of choosing electors, and has failed to make a choice on the 
day prescribed by law, the electors may be appointed on a sub- 
sequent day in such a manner as the Legislature of such State 
may direct. 

If it were true, as ruled in Furman v. Clute, 50 
New York Reports ; in Commonwealth v. Cluly, 56 
Pennsylvania State Reports; in Searcy v. Grow, in 15 
California Reports ; if it were true, as ruled in all the 
American cases, which have held that the next highest 
competing candidate was not elected, that the case was 
one of non-election, and rendered necessary a new elec- 
tion, then I respectfully submit that the one hun- 
dred and thirty-fourth section of the Revised Stat- 
utes provided for the State of Florida a remedy for 
the mischief to which she was found on the 7th of No- 
vember to have been subjected. She could have pro- 
vided by law, as I shall presently show to your honors 
was done in the State of Rhode Island, to meet the ex- 
act contingency. It is not the case of an absolute non- 
election, or one where there has been no attempt to hold 
an election to which this section refers. This provision 



[17] 

of law operates whenever any State has held an election 
for the purpose of choosing electors and has failed to 
make a choice on the day prescribed by law. Then the 
electors may be appointed on a subsequent day in such 
manner as the Legislature of such State may direct. 

If every elector in every State in the United States 
were disqualified, would it not be true that there was an 
election held and a failure to make choice ? If every 
elector in the State of Florida was disqualified, would 
it not be true that there was an election held, but 
without choice? If, in the State of Pennsylvania, 
in the case oT Cluly, the people had again to elect ; if, 
in New York, in Furman v. Clute, the people had again 
to elect ; if, in California, in the case of Searcy v. Grow, 
the people had again to elect, then it would follow that, 
if all the four electors of the State of Florida were dis- 
qualified, it would be clearly a case of failure to make 
choice, and the people would have to elect again, pro- 
vided the Legislature confided to the people, under sec- 
tion 134, the function of electing for the second time 
and did not exercise it themselves, as was done in 
Rhode Island. Omne majus continet in se minus. 

If it be a failure to make choice where a single dis- 
qualified candidate runs against another officer, if it 
be a failure to make choice so that he can be ousted 
and a new election is required to be held, and if there 
be a provision of statute law of the United States con- 
templating the emergency and providing a remedy, and 
if the power of appointment be with the State, and if 
the opportunity of remedy be with the State, then I 
submit that it must be shown that the State has taken 
advantage of this provision of the Revised Statutes, 
section 134, or the single vote is lost. 

The question came directly before the judges of the 
Supreme Court of Rhode Island, in the case of George 



[18] 

H. Corliss, who held the office of member of the Cen- 
tennial Commission under the United States on the day 
of the presidential election. The governor, under the 
authority of the statutes, submitted to the judges of 
the Supreme Court of that State five questions : First, 
whether the office of centennial commissioner was an 
office of trust and profit, which they answered, by a 
majority of voices, it was, such as disqualified the 
holder for the office of elector of President and Vice- 
President. Secondly, whether the candidate who re- 
ceived a plurality of votes created a vacancy by de- 
clining the office. Thirdly, whether the disqualification 
was removed by the resignation of the said office of 
trust or profit. Fourthly, whether the disqualification 
resulted in the election of the candidate next highest in 
number of votes, or in failure to elect. Fifthly, if by 
reason of the disqualification of the candidate who re- 
ceived the plurality of the votes given there was no 
election, could the General Assembly in grand com- 
mittee elect an elector ? 

The judges answered the first question, as I said, 
by a majority of voices, that it was a disqualifying 
fact, this office of Commissioner of the United States 
Centennial Commission, and, by all their voices agree- 
ing, answered that " such candidate who received a plu- 
rality declining the office did not create a vacancy ;" that 
the disqualification was not removed by the resignation 
of the office, but that the disqualification did not result 
in the election of the candidate next in vote, but did 
result in a failure to elect, and that there was no elec- 
tion, so that the General Assembly in grand committee 
might elect, and the General Assembly in grand com- 
mittee did elect. 

The opinion is signed by all the judges, Thomas 
Durfee, W. S. Burges, E. R. Potter, Charles Matteson, 



[19] 

and Stiness. It was a question submitted under the 
constitution and laws of that State. I read it at this time 
in order that I may if possible satisfy the Commission 
that the construction which I place on section 134 of 
the revised statutes is the correct construction. 

In answer to the fourth question, which was this, cc If 
not, does the disqualification result in the election of 
the candidate next in vote or in a failure to elect," the 
court answered ; 

We think the disqualification does not result in the election of 
the candidate next in vote, but in a failure to elect. 

In England it has been held that where electors vote for an in- 
eligible candidate, knowing his disqualification, their votes are 
not to be counted, any more than if they were thrown for a dead 
man or the man in the moon, and that in such a case the opposing 
candidate, being qualified, will be elected, although he has had a 
minority of the votes. 

And such is the rule in Indiana and as was established 
at an early day in Maryland by Chief Justice Samuel 
Chase, of that State, and has continued in force, as I 
am informed, down to this time, and been enforced 
very recently. The judges of Rhode Island sus- 
tain this by the following references : King v. Hawkins, 
10 East. 210 ; Reg. v. Coaks, 3 El. & B. 253. 

But even in England, if the disqualification is unknown, the 
minority candidate is not entitled to the office, the election being 
a failure. (Queen v. Hiornes, 7 Ad. & E. 960 ; Rex v. Bridge, 
1 M. & Selw. 76.) And it has been held that to entitle the mi- 
nority candidate to the office it is not enough that the electors 
knew of the facts which amount to a disqualification, unless they 
likewise knew that they amount to it in point of law. (The 
Queen v. The Mayor, etc., Law Rep., 3 Q. B. 629.) 

Inthis country the law is certainly not more favorable to the mi- 
nority candidate. (State v. Giles, 1 Chandler (Wis.) 112 ; State 
v. Smith, 14 Wis. 497 ; Saunders v. Haynes, 13 Cal. 145 ; Peo- 
ple v. Clute, 50 N. Y. 451.) The question submitted to us does 
not allege or imply that the electors, knowing the disqualification, 



[20] 

voted for the ineligible candidate in willful defiance of the law ; 
and certainly, in the absence of proof, it is not to be presumed 
that they so voted. The only effect of the disqualification, in our 
opinion, is to render void the election of the candidate who is dis- 
qualified, and to leave one place in the electoral college unfilled. 

The answer to the fifth question, " If by reason of 
the disqualification of the candidate who received a 
plurality of the votes given there was no election, can 
the General Assembly in grand committee select an 
elector," was in the affirmative. The court, in discus- 
sing another question, had cited the seventh section of 
the General Statutes of Rhode Island, chapter 11, to 
wit : 

If any electors, chosen as aforesaid, shall, after said elec- 
tion, decline the said office, or be prevented by any cause from 
serving therein, the other electors, when met in Bristol in pursu- 
ance of this chapter, shall fill such vacancies. 

They had decided that disqualification did not create 
a case of vacancy. They then considered another stat- 
ute of Rhode Island, which they held to have been 
passed under the authority confided to the State of 
Rhode Island by the one hundred and thirty-fourth 
section of the Revised Statutes ; 

" Our statute (General Statute, ch. n, sec. 5) provides that if, 
by reason of the votes being equally divided, or otherwise, there 
shall not be an election of the number of electors to which the 
State may be entitled, the governor shall forthwith convene the 
General Assembly at Providence for the choice of electors to fill 
such vacancy by an election in grand committee." We think this 
provision covers the contingency which has happened, and that, 
therefore, the General Assembly in grand committee can elect 
an elector to fill up the number to which the State is entitled. 
The law of the United States provides that " whenever any State 
'has held an election for the purpose of choosing electors, and has 
failed to make choice on the day prescribed by law, the electors 
may be appointed on a subsequent day, in such manner as the 
Legislature of the State may direct." 



[ 21 ] 

We have, then, the unanimous opinion of all the judges 
of Rhode Island to the effect that the distinction on 
which we insist is well taken, that the acts of Congress 
are furnished for the purpose of covering all the cases 
that may arise, in order that the constitutional provis- 
ion may have full force and effect ; and yet that the State 
may not be deprived of its opportunity to be fully rep- 
resented in the electoral college. The inhibition of the 
constitution being peremptory, and like all the inhibi- 
tions, whether express or implied, self-enforcing, were 
there no such provision as that contained in section 
134, the vote of the State would necessarily be lost, 
unless it could be shown by some principle of law, by 
the authority of some decided case, that the election of 
a disqualified candidate is possible notwithstanding the 
disqualification contained in a constitutional inhibition 
of the character here referred to. 

But peradventure by mistake, and without the intent 
to violate the spirit of the constitutional provision, by 
mere misadventure the State may have selected as one 
of its electors or as all of its electors persons holding 
disqualified offices, and, therefore, said Congress, when- 
ever there be a case of non-election in any State the Leg- 
islature may provide a method of supplying the de- 
fect, and whenever there be a case of vacancy the Leg- 
islature may provide a method of supplying the defect; 
a vacancy which occurs when the college of elected elect- 
ors meets, a non-election which occurs when an election 
has been held. If no election has been held, there is no 
provision of statutory law to meet the case at all ; but 
the one hundred and thirty-third section provides for 
the case of a vacancy when there has been a qualified 
person elected, and the one hundred and thirty-fourth 
section provides for the case of non-election when an 
election has been held. It does not contemplate the 



[ 22 ] 

case where no election at all has been held, but it ex- 
plicitly provides for a case where an election has been 
held which has not resulted in the choice of a competent 
and qualified candidate, and furnished to the people of 
the State of Florida, as it did to the State of Rhode 
Island, ample opportunity to save themselves from all 
misadventure, from all the consequences of mistake, or 
ignorance, or innocent evil, by enabling them to have a 
second opportunity, notwithstanding the constitutional 
provision that Congress may determine the time of 
choosing the electors. 



AS TO THE 

ELECTORAL VOTE OF THE STATE OF OREGON. 



On Wednesday, February 21, 1877, the Electoral Commission 
held an evening session in the Senate Chamber, when Mr. 
Hoadly delivered the following argument on behalf of the 
electoral votes cast, in the State of Oregon, by E. A. Cronin, 
J. N. T. Miller, and John Parker, and contained in cer- 
tificate JS T o. 2, and against the electoral votes contained in 
certificate No. 1, opened by the President of the Senate, con- 
taining the votes of John W. Watts, William H. Odell, 
and John C. Cartwright,/o?' Hayes and Wheeler. 



Mr. President and Gentlemen of the Commis- 
sion : The first proposition to which I address my- 
self is that the decisions made by the Commission in 
the cases of Florida and Louisiana, applied to this case, 
require the Commission to sustain the electoral votes 
cast by Cronin, Miller, and Parker, namely, one for 
Tilden and Hendricks, and two for Hayes and Wheeler. 
Without retracing its steps and withdrawing the con- 
clusions the Commission has announced in the cases 
of Florida and Louisiana, the result can not be reached 
which is desired by our learned antagonists. 

In order that we may in the briefest possible manner 
ascertain the point of contention, I will read from the 
decision of this Commission in the case of Louisiana : 

And the Commission has by a majority of votes decided and does 
hereby decide that it is not competent under the Constitution and 
the law as it existed at the date of the passage of said act to go 



[ 24 ] • 

into evidence aliunde the papers opened by the President of the 
Senate in the presence of the two Houses to prove that other per- 
sons than those regularly certified to by the governor of the State 
of Louisiana, on and according to the determination and decla- 
ration of their appointment by the returning officers for election 
in the said State prior to the time required for the performance 
of their duties, had been appointed electors, or by counter-proof 
to show that they had not ; or that the determination of the said 
returning officers was not in accordance with the truth and the 
fact ; the Commission by a majority of votes being of opinion 
that it is not within the jurisdiction of the two Houses of Con- 
gress assembled to count the votes for President and Vice-Presi- 
dent to enter upon a trial of such questions. 

I do not understand that this is a ruling upon a 
mere question of proof, but that it is a ruling upon a 
high proposition of jurisdiction. Nor do I understand 
that by this decision is meant that anything and every- 
thing which any person claiming to be an elector may 
enclose in an envelope and address to the President of 
the Senate has the force of testimony before this hon- 
orable Commission, but only that those documents and 
papers which if offered aliunde would be competent, 
may be considered when found within the envelopes, 
and that the determination and decision of the return- 
ing board of a State, acted upon by the governor of the 
State in the manner provided in the one hundred and 
thirty-sixth section of the Revised Statutes, is final and 
conclusive, and that the names therein contained are the 
names of the true and valid electors of the State. 

That I am right in this construction of this decision 
is confirmed by the views of one for whom long knowl- 
edge has impressed me with great respect. I am not 
personally intimate with him, but intimate in the sense 
in which any citizen may be said to be intimate with the 
judgment, the opinions, and the habits of accuracy of 
statement of a statesman. I say, that I am right in this 
conclusion is confirmed by a statement of reasons for 



[25] 

this conclusion given in the Senate of the United States 
on the 20th of February by a member of this Commis- 
sion, the honored Senator from Indiana [Mr. Morton]. 
He said: 

The Constitution says the certificates shall be opened by the 
President of the Senate in the presence of the two Houses. 
Whether he is to count the votes or whether the two Houses are 
to count the votes, and I assume under this law the two Houses 
are to do it, or in certain cases this Electoral Commission, what 
can they do ? They have but one duty to perform, and that is to 
ascertain that these certificates came from the electors of the State. 
When that is done " the vote shall then be counted." They must 
ascertain the fact whether they came from the electors of the 
State ; and when they have ascertained that their duty is at an 
end. There is no time, there is no place to try any question of 
ineligibility or of election when the votes are to be counted. And 
how are we to know that the certificates came from the electors 
of the State ? In the first place the act of Congress provides 
frima facie evidence, the governor's certificate, but that is not 
conclusive. That is the result of an act of Congress. Congress 
may repeal that act or it may provide by another to go behind it, 
but when you go behind that and come to the action of the officers 
of the State, there your inquiry is at an end. Whenever the 
officers appointed by a State to declare who have been chosen 
electors have acted and made that declaration, it is final so far as 
Congress is concerned. The action of the State officers is the act 
of the State. 

With this statement of principle I am content. My 
proposition is that the State of Oregon, through her 
State officers, through her governor, supported by her 
canvassing board, has spoken, and the result of her 
speech is here in the certificates of E. A. Cronin, Will- 
iam H. Odell, and John C. Cartwright, which certifi- 
cates are attached to the votes of Cronin, Miller, and 
Parker, and are the only legitimate, lawful evidence of 
the act of Oregon, without which the pretended votes 
of Odell, Cartwright, and Watts fail to have any legal 
effect whatever. 



[26] . 

The views expressed by Senator Morton find con- 
firmation in the case of Dennett, petitioner, in volume 
32 of the Reports of the State of Maine, page 508. 
The opinion was pronounced by Shepley, chief-justice, 
and there was no dissenting opinion; 

The act of opening and comparing the votes returned for county 
commissioners can not be performed by the persons holding the 
offices of governor and of councilors, unless they act in their 
official capacities, for it is only in that capacity that the power is 
conferred upon them. The duty is to be performed upon the re- 
sponsibility of their official stations and under the sanctity of their 
official oaths. The governor and council, and not certain persons 
that may be ascertained to hold those offices, must determine the 
number of votes returned for each person as county commissioner, 
and ascertain that some one has or has not a sufficient number to 
elect him. 

It is, then, the State of Oregon which speaks when 
the governor, under section 136 of the Revised Stat- 
utes of the United States, in obedience to the return 
and canvass of the returning officers, to the declaration 
and determination of the result of the canvass by the 
returning officers,' issues that certificate. 

It shall be the duty of the executive of each State — 

Says the statute — 

to cause three lists of the names of the electors of such State to 
be made and certified, and to be delivered to the electors on or 
before the day on which they are required by the preceding sec- 
tion to meet. 

Again, section 138 : 

The electors shall make and sign three certificates of all the 
votes given by them, each of which certificates shall contain two 
distinct lists, etc. 

And so the next section, that the certificates shall be 
sealed and delivered, one to the Federal district judge, 



[ 27 ] 

one sent by mail to the President of the Senate, and 
one sent by messenger to the President of the Senate. 

Now, I ask your honors' attention to the question, 
Who were the electors ascertained to be appointed by 
the official decision and determination (that I believe to 
have been the language used in the Florida case) of the 
board of State canvassers of the State of Oregon? Or, 
to use the language adopted in the Louisiana case, Who 
were the returning officers upon and according to whose 
determination of their appointment the governor acted 
or failed to act, as the case may be, in the issue of the 
certificates of the State of Oregon ? 

This leads us to an examination and comparison of 
the statutes of the State of Oregon in connection with 
the statutes of the States of Florida and Louisiana, for 
I refer to Florida and Louisiana, in order that we who 
are of counsel may have a guide to the real effect of 
the opinions already pronounced by this Commission. 
I mean of course in applying to the case of Oregon 
the decisions made by this Commission in the matter 
of Florida and Louisiana. 

In Florida certain persons are to 

form a board of State canvassers, and proceed to canvass the 
returns of said election, and determine and declare who shall 
have been elected to any such office or as such member, as shown 
by such returns. 

Here the office of determination and declaration is 
superadded to the office of canvassing ; and by a later 
provision in the same section the board are required to 

make and sign a certificate containing in words written at full 
length the whole number of votes, etc. 

And— 

When any person shall be elected to the office of elector . . . 
the governor shall make out, sign, and cause to be sealed with the 



[ 28 ] 

seal of the State, and transmit to such person a certificate of his 
election. 

The point to which I desire particularly your atten- 
tion is that, under the laws of Florida, the determina- 
tion and decision are separated in legal thought, and 
thus, in legal act, from the canvass itself; and so we 
find it in Louisiana, as is made manifest in the oath 
that — 

I will carefully and honestly canvass and compile the state- 
ments of the votes. 

Again — 

Within ten days after the closing of the election said returning 
officers shall meet in New Orleans to canvass and compile the 
statements of votes made by the commissioners of election, and 
make returns of the election to the secretary of state. They shall 
continue in session until such returns have been compiled. The 
presiding officer shall, at such meeting, open in the presence of 
the said returning officers the statements of the commissioners of 
election, and the said returning officers shall, from said statements, 
canvass and compile the returns of the election in duplicate ; one 
copy of such returns they shall file in the office of the secretary 
of state, and of one copy they shall make public proclama- 
tion, by printing in the official journal and such other newspapers 
as they may deem proper, declaring the names of all persons and 
officers voted for, the number of votes for each person, and the 
names of the persons who have been duly and lawfully elected. 
The returns of the election thus made and promulgated shall be 
firima facie evidence in all courts of justice and before all civil 
officers, until set aside after contest according to law, of the right 
of any person named therein to hold and exercise the office to 
which he shall by such return be declared elected. The governor 
shall, within thirty days thereafter, issue commissions to all officers 
thus declared elected, who are required by law to be commis- 
sioned. 

Now in Oregon the language of the sixtieth section 
is this ; 

The votes for the electors shall be given, received, returned, and 



[29] 

canvassed as the same are given, returned, and canvassed for 
members of Congress. The secretary of state shall prepare two 
lists of the names of the electors elected, and affix the seal of the 
State to the same, etc. 

I will come back to that presently. Let us now see 
how votes are given, received, returned, and canvassed 
for members of Congress. Section 37 is : 

The county clerk, immediately after making the abstract of the 
votes given in his county, shall make a copy of each of said ab- 
stracts, and transmit it by mail to the secretary of state, at the 
seat of government ; and it shall be the duty of the secretary of 
state, in the presence of the governor, to proceed, within thirty 
days after the election, and sooner if the returns be all received, 
to canvass the votes given for secretary and treasurer of state, 
state printer, justices of the supreme court, members of Congress, 
and district attorneys. 

If this were all the statute, an argument by implica- 
tion might be made, to the effect that the duty to can- 
vass involves the duty to determine the results of the 
canvass. But this is not all, for the governor, who is 
required to be present, is not an idle spectator, as is 
claimed by the objectors to certificate No. 2 : 

And the governor shall grant a certificate of election to the per- 
son having the highest number of votes, and shall also issue a 
proclamation declaring the election of such person. 

And this is made perfectly plain by the next sen- 
tence : 

In case there shall be no choice by reason of any two or more 
persons having an equal and the highest number of votes for 
either of such offices, the governor shall, by proclamation, order 
a new election to fill said offices. 

For what purpose is the governor present ? He is 
to witness the canvass and declare its result, and his dec- 
laration of its result is the certificate he gives, and his 



[ 30 ] 

proclamation declaring the election of such person. He 
is not there by way of idle ceremony any more than the 
two Houses of Congress are present at the opening of 
the envelopes as a mere idle ceremony. He is there to 
do what is required of him to do — to witness the can- 
vass and to declare its result. But if this be not so in the 
matter of members of Congress of Oregon, it is un- 
questionably so with regard to the final determination, 
decision, and declaration of the result of the election of 
electors. The secretary of state is to canvass. No 
duty is imposed on him to declare any result whatever. 
He is to canvass, and what is that canvass ? I copied — 
perhaps it was an idle thing — from the approved lexi- 
cographers the definition of the word. Worcester says: 

i. To sift ; to examine ; to scrutinize. 

I have made careful search, and canvassed the matter with all 
possible diligence. — Woodward. 

2. To debate; to discuss; to agitate. 

They canvassed the matter one way and t'other. — & Estrange. 

To solicit votes from ; to bespeak. 

And Webster traces the origin of the word to the old 
French word canebasser^ and defines it thus : 

To examine curiously ; to search or sift out, as canvass in Old 
English, and probably in Old French signified also a sieve, a 
straining-cloth. 

i. To sift ; to strain : to examine thoroughly ; to search or scru- 
tinize ; as, to canvass the votes for senators. 

2. To take up for discussion ; to debate. 

An opinion that we are likely soon to canvass. — Sir W. Ham- 
ilton. 

3. To go through in the way of solicitation ; as, to canvass a 
district for votes. 

Here is no necessary implication that the word means 
cc to determine the result." It is to examine, scruti- 
nize, tabulate, and formulate, but not necessarily to as- 
certain and determine results, and so the word is used 



[31] 

in Florida, and so the word is used in Louisiana, and 
so the corresponding word " examine," as I shall pres- 
ently show you, is used in Massachusetts, and so the 
word is used in Oregon. When we come to the six- 
tieth section of the statute, we find that this view is 
confirmed. Let us now return to the sixtieth section : 

The votes for the electors shall be given, received, returned 
and canvassed as the same are given, returned, and canvassed for 
members of Congress. 

It does not say " given, received, returned, canvassed, 
and declared, " or "given, received, returned, canvassed, 
and certified. " It says, cc given, received, returned, and 
canvassed," and the provision with regard to the final 
determination and decision is contained in the next 
clause of the section : 

The secretary of state shall prepare two lists of the names of 
the electors elected, and affix the seal of the State to the same. 

Two lists, not three ; the secretary of state, not the 
governor. It is not under the act of Congress that 
this is required, for the act of Congress calls for no 
great seal of Oregon, and calls for no certificate of 
the secretary of state of Oregon. The act of Congress 
calls for a certificate which may be without a seal, which 
may be without the attestation of a secretary. The act 
of Congress simply provides that it shall be the duty 
of the executive of each State to cause three lists of the 
names of the electors of such State to be made and 
certified. 

But Oregon says: 

The secretary of state shall prepare two lists of the names of 
the electors elected, and affix the seal of the State to the same. 
Such lists shall be signed by the governor and secretary, and by 
the latter delivered to the college of electors at the hour of their 
meeting on such first Wednesday of December, 



[32] 

And here are the lists prepared under this section, to 
which are signed the names of the governor and secre- 
tary, under the great seal of the State, declaring that 
William H. Odell, John C. Cartwright, and E. A. 
Cronin are the electors elected : 

I, L. F. Grover, governor of the State of Oregon, do hereby 
certify that at a general election held in said State on the yth day 
of November, A. d., 1876 William H. Odell received 15,206 votes, 
John C. Cartwright 15,214 votes, E. A. Cronin received 14,157 
votes, for electors of President and Vice-President of the United 
States ;' being the highest number of votes cast at said election 
for persons eligible, under the Constitution of the United States, 
to be appointed electors of President and Vice-President of the 
United States, they are hereby declared duly elected electors as 
aforesaid for the State of Oregon. 

This is the voice of Oregon, according to the judg- 
ment of this Commission in the cases of Florida and 
Louisiana. Its truthfulness has been impeached; but 
one thing I am certain I may say in this presence, it is 
as true as the certificates which have received the ap- 
proval of this Commission coming from Florida and 
Louisiana, 

They are duly elected. They are hereby declared — 

duly elected electors as aforesaid for the State of Oregon. 

LAFAYETTE GROVER, 

Governor of Oregon. 
Attest : 

S. F. Chadwick, 

Secretary of State of Oregon. 

But, says my learned friend, the secretary of state 
has simply signed it as a witness. Not so. He signed 
it in attestation of the truth of the fact. He is a par- 
ticipant in the declaration thereby He has attached 
the great sealh of the State. It is the act of the gov- 
ernor and the act of the secretary in the ordinary form, 
and being such, it is in compliance with the sixtieth 



[33] 

section of the statute of Oregon, and at the same time 
with the one hundred and thirty-sixth section of the Re- 
vised Statutes of the United States, and thus constitutes 
the final and conclusive decision and determination of 
the vote of the State of Oregon, according to the only 
evidence provided by law by which this tribunal can com- 
municate with the State of Oregon. The laws of the 
United States have provided but a single method by 
which this tribunal can communicate with Oregon. It 
is in the one hundred and thirty-sixth section of the Re- 
vised Statutes of the United States. There is the 
method pointed out by law by which the voice of Oregon 
may speak to this tribunal, to the two Houses of Con- 
gress, and which this tribunal, standing in the place of 
the two Houses of Congress, may hear as the voice of 
Oregon, as has been decided in the cases of Florida and 
Louisiana. 

I submit this proposition in connection, however, 
with a decision in the State of Massachusetts. 

Mr. Commissioner Thurman. Who, by the laws 
of Oregon, had the custody of the great seal of the 
State ? 

Mr. Hoadly. I am unable to answer the ques- 
tion. 

Mr. Matthews. The secretary of state, by the Con- 
stitution. 

Mr. Hoadly. It has been answered probably cor- 
rectly. I do not mean by cc probably correctly ' to 
impeach my learned friend. I meant 

Mr. Matthews. The Constitution says so. 

Mr. Hoadly. I have not looked at it; but I 
say there is nothing in the laws of Oregon which re- 
quires any such certificate or exemplification as is pre- 
sented by the supporters of certificate No. i. It can 
not be found there. There is the provision of Oregon, 



[34] 

section sixty, and the abstract, which is simply a certified 
statement of the number of votes received at the election, 
is a provision aliunde the laws of Oregon, although it 
was within the envelope opened by the President of the 
Senate. 

Mr. Representative Lawrence. The secretary of 
state can certify at common law. 

Mr. Hoadly. But the laws of Oregon have de- 
termined and prescribed who shall certify to this tri- 
bunal. That certificate we present. 

Now I call your honors' attention to the opinion of 
the judges of the supreme judicial court of Massa- 
chusetts, signed by them all — Horace Gray, John 
Wells, James D. Colt, Seth Ames, Marcus Morton, 
William C. Endicott, and Charles Devens, jr., Boston, 
March 5, 1875 — to be f° un d on page 600 of the one 
hundred and seventeenth volume of Massachusetts Re- 
ports : 

The seventh chapter of the general statutes has constituted the 
governor and council a board to examine, as soon as may be after 
receiving them, the returns of votes from the various cities and 
towns for district attorneys and other officers named in this article 
of the Constitution, and requires the governor forthwith to trans- 
mit to such persons as appear to be chosen to such offices a cer- 
tificate of such choice, signed by the governor and countersigned 
by the secretary of the Commonwealth. 

Notice, the governor and council are obliged to ex- 
amine the returns ; it does not say u to examine and 
declare the result," but cc to examine:" 

The nature of the duties thus imposed and the very terms of 
the statute show that they are to be performed without unneces- 
sary delay, and that the certificate issued by the governor to any 
person appearing upon such examination to be elected is the final 
and conclusive evidence of the determination of the governor and 
council as to his election. 

I submit that by parity of reasoning the certificate or 



[35] 

list signed by the governor and secretary of state of 
Oregon, under the great seal of the State, and by the 
latter delivered to the college of electors at the hour of 
their meeting on the first Wednesday of December, is 
the final and conclusive evidence of the determination 
of the governor and secretary as to their election. Why 
are the governor and secretary required to sign these 
lists ? It is that the chief executive of the State and 
the canvassing officer shall unite in declaring who are 
elected. The secretary, the canvassing officer, is re- 
quired to prepare two lists of the names of electors 
elected, and to affix the great seal of the State to the 
same ; and the governor, in whose presence the canvass 
is made, must also sign, and together their signatures, 
with the great seal of the State, constitute the final and 
conclusive, irrefragible evidence who are the electors of 
the State of Oregon. 

I pass from this proposition to consider another. It 
is a familiar proposition of law that when a commission 
or certificate of election has been delivered to an officer, 
and he accepts it, and enters upon the performance of 
the duties of that office, he becomes an officer de jure et 
de facto, and is to be so treated in all courts, in all places, 
under all circumstances, except when his title may be im- 
peached by quo warranto, certiorari, or proceeding under 
a statute for contest. This evidence, is here presented by 
E. A. Cronin, J. N. T. Miller, and John Parker. They 
come here, Cronin, as a certificated elector, having 
vouched in Miller and Parker to vote with him in con- 
sequence of the refusal of Cartwright and Odell to act 
with him. I will stop a moment simply to say that in 
my judgment the statements contained in the record in 
connection with certificate No. i are confirmed and 
placed beyond the possibility of a doubt by the state- 
ments contained in certificate No. i. Mr, Cronin says 



[36] 

(and he presents the authentic, official advice to this 
Commission of his election and the election of Odell 
and Cartwright) that they refused to act with him, and 
they say that they were elected with Watts, and that 
they organized with Watts by accepting the resignation 
of Watts and electing into the place, thus made vacant 
by the declination of Watts, Mr. Watts himself 

I respectfully submit, Mr. President and gentle- 
men of the Commission, that there is no contradiction 
between these certificates. Mr. Cronin was in posses- 
sion of the official decision and determination of the 
canvassers of Oregon. He proposed to act. Mr. 
Watts' name is not in the official decision and deter- 
mination of the canvassers of Oregon, but was excluded 
by them. Mr. Watts proceeded to act with Odell and 
Cartwright. They did not say, as my learned friend 
who closed the argument for the objectors would have 
this Commission to understand, that they (Odell and 
Cartwright with Cronin) made the board, and that 
Cronin refused to act with them. There can be no 
refusal without an opportunity. They proceeded to 
exclude Cronin by accepting Watts' resignation. 

Mr. Commissioner Abbott. Is there any allega- 
tion anywhere on that certificate that they refused to act 
with Cronin or Cronin refused to act with them ? 

Mr. Hoadly. Cronin's name is not in that cer- 
tificate. He is ignored utterly and entirely. Odell and 
Cartwright state that they acted with Watts, that they 
accepted Watt's resignation, and elected Watts to take 
the place of Watts, all the while it being shown by the 
official decision and determination that Cronin was 
ready to act, Cronin alleging, with Miller and Parker, 
that they refused to act with him, and they alleging, 
without naming him, that they refused to act with him 



[37] 

by alleging that they did act without him and with 
Watts. 

I was wrong in saying that their record does not name 
Cronin. It does name him, but it names him to confirm 
the statement I have just made. Certificate No. i says 
that Odell and Cartwright required of the governor and 
the secretary of state certified lists, which both those offi- 
cers refused to give them, thus adding to their official 
decision and determination a refusal to give such evi- 
dence to anybody else. 

And so far as evidence aliunde the lists may be con- 
sidered (a question which this Commission may yet be 
called upon to decide) they do say : 

And being informed that such lists had been delivered to one 
E. A. Cronin, by said secretary state, we, each and all — 

That is, Watts, Odell, and Cartwright, each and 
all— 

demanded such certified lists of said E. A. Cronin ; but he then and 
there refused to deliver or to exhibit such certified lists to us or 
either of us. 

And, therefore, Mr. Cronin produces the lists which 
do not contain the name of Watts. 

I was going on to say that a certificated or commis- 
sioned officer who enters upon the discharge of dutv is 
an officer de jure et de facto in all tribunals, in all places,, 
with reference to any action of his in his office, until 
challenged by writ of quo warranto, or contest of elec- 
tion, or writ of certiorari. The lists provided for by 
the one hundred and thirty-sixth section of the Revised 
Statutes and the sixtieth section of the statutes of Oregon 
being held by E. A. Cronin did make him an elector de 
jure et de facto as to all persons, except the State chal- 
lenging upon quo warranto, or except upon certiorari, 
or except upon contest of election ; and to that propo- 



[38] 

sition I desire to direct a few remarks, which will be 
mainly by way of referring to authority. 

I will read first from the case of the People v. Mil- 
ler, 1 6 Michigan Reports, page $6. It is the opinion 
of his honor, Mr. Justice Christiancy, concurred in by 
Judge Cooley and Judge Campbell, and I am sure I 
need not say in this hall that an opinion from such a 
source, with such confirmation, can not be challenged 
with safety in any court of justice in the land. 

The certificate of election, whether rightfully or wrongfully 
given, confers upon the person holding it the prima facie right 
of holding it for the term, and this prima facie right is subject to 
be defeated only by his voluntary surrender of the office, or by a 
judicial determination of the right. We do not mean to say that 
if the respondent had abandoned or should abandon his claim to 
the office under the election, witnessed by the certificate admitting 
the relator's right, that the board might not have received and ap- 
proved the relator's bond, but they certainly had no jurisdiction 
to try the validity of the election as between the relator and the 
respondent, and in such a contest the certificate of election was 
conclusive upon them until the right should be judicially tried 

The head-note or syllabus of the case is : 

The certificate of election, wdiether rightfully or wrongfully 
given by the board of canvassers, confers upon the person holding 
it the prima facie right to the office until his right is rejected by 
a voluntary surrender or by a judicial determination against him. 

This proposition has been three times decided in the 
State of Pennsylvania, in cases to which I will direct 
your honors, beginning with the case of Common- 
wealth ex relatione Ross v. Baxter, 35 Pennsylvania 
State Reports, p. 263 : 

A return by the election officers that A B received a majority 
of the votes for a township office is legal and prima facie evidence 
of his title to the office ; and it can only be set aside by proceed- 
ings for a false return under the act of July 2, 1839. It can not 
be inquired into by quo -warranto. 



[39] 

So in the forty-first volume Pennsylvania State Re- 
ports, Hulseman and Brinkworth v. Rems and Siner, 
page 401, a case of great interest in many respects. I 
read from pages 400 and 401. It was an action in 
equity for an injunction, for in Pennsylvania it is held 
that a conflict between two officers claiming in conflict- 
ing rights may be decided under certain circumstances 
by injunction in equity. 

We have, therefore, no ground left for our interference but the 
single one that the return judges included in their enumeration 
returns purporting to be from three companies of volunteers, 
which were forgeries. We admit, therefore, that the evidence 
proves that these certificates of the election of the defendants are 
founded in manifest fraud, the forgery of some unknown person, 
but we do not find that the defendants had any hand in it ; and 
we trust they had not. Can we on this account interfere and de- 
clare the certificates void ? 

Mr. Commissioner Hoar. Who were the defend- 
ants in that case ? 

Mr. Hoadly. It was a proceeding in equity by 
John Hulseman and George Brinkworth, citizens and 
qualified voters, against James Rems and Charles B. 
Siner. 

Mr. Commissioner Hoar. Were they the persons 
claiming the office? 

Mr. Hoadly. They were the persons claiming the 
office and holding the certificates of election. 

According to our laws the election has passed completely 
through all its forms, the result has been in due form declared and 
certified, and the defendants have received their certificates of 
election, and are entitled to their seats as members of the com- 
mon council. The title-papers of their offices are complete, and 
have the signatures of the proper officers of the law ; and if they 
are vitiated by any mistake or fraud in the process that has pro- 
duced them, this raises a case to be tried by the forms of" a con- 
tested election " before the tribunal appointed by law to try such 



[40] 

questions, and not by the ordinary forms of legal or equitable 
process before the usual judicial tribunals. 

In Kerr and others -u. Trego and others, 47 Penn- 
sylvania State Reports, page 292, the syllabus is : 

In all bodies that are under law, where there has been an au- 
thorized election for the office in controversy, the certificate of 
election which is sanctioned by law or usage is the -prima facie 
written title to the office, and can only be set aside by a contest in 
the forms prescribed by law. 

To the same effect the case of the People v. Cook, 
in 4 Selden's Reports, page 68 : 

The certificate of the board of canvassers maybe conclusive 
of the election of an officer in a controversy arising collaterally, 
or between the party holding it and a stranger. But between the 
people and the party in an action to impeach it, it is only -prima 
facie evidence of the right. It is the will of the electors and 
not the certificate w r hich gives the right to the office. 

So again in 33 New York reports. I will read from 
page 606, the case of Hadley v. Mayor. It was a case 
of a policeman suing for salary. In other words, it 
was an action in which the question arose, as it arises 
here, collaterally; it did not arise by quo warranto; it 
did not arise by certiorari; it did not arise by contest; 
it arose as here : 

The second exception was to the decision by which the court 
excluded the inspector's returns. The object, I suppose, was to 
show that the returns elected Mr. Quackenbush and not Mr. Perry. 
But the law having committed to the common council the duty 
of canvassing the returns and determining the result of the elec- 
tion from them, and the council having performed that duty and 
made a determination, the question as to the effect of the returns 
was not open for a determination by a jury in an action in which 
the title of the officer came up collaterally. If the question had 
arisen upon an action in the nature of a quo warranto information, 
the evidence would have been competent. But it would be in- 



[41] 

tolerable to allow a party affected by the acts of a person claim- 
ing to be an officer to go behind the official determination to 
prove that such official determination arose out of mistake or 
fraud. 

So also in Dutcher's Reports, New Jersey, page 355, 
the case of the State v. The Clerk of the County of 
Passaic : 

A quo warranto is the legal and usual mode in which title to 
office may be tried and finally adjudicated. 

The determination of the board of county canvassers has no 
such final effect as to interfere with a full investigation of the re- 
sult of an election upon a writ of quo warranto. 

Again, on page 356 : 

In the present instance, the writ appears to have been designed 
as ancillary to the application for a mandamus, in order to bring 
before the court the decision of the board of county canvassers 
and the evidence upon which it was founded. That application 
having been denied, and the office having been filled, a decision 
upon the validity of the proceedings of the board would be nuga- 
tory. It would neither vacate the commission which has been 
issued nor avail the plaintiff in any subsequent proceedings which 
may be instituted to determine his rights. If the determination 
of the board of county canvassers partakes at all of the character 
of a judicial act, it certainly has no such final or conclusive effect 
as to interfere with the full and free investigation of the legal re- 
sult of the election upon a writ of quo warranto. 

So in Minnesota, in the fifteenth volume of Min- 
nesota Reports, page 455, the decision of a court, 
one of the judges of which is now a member of the 
United States Senate (Mr. McMillan), State of Min- 
nesota ex rel. R. A. Briggs v. O. A. Churchill, auditor, 
etc: 

Under the laws of this State the result of the canvass by a board 
of county canvassers is a decision and determination of the elec- 
tion of the persons whom they declare to be elected. 

The abstract of the canvass of the votes in the form prescribed 



[42] 

in the statute is the authentic and official evidence of the canvass 
by the board by which the county auditor is to be governed in 
issuing the certificates of election. 

When a certificate of election is issued and delivered by the 
auditor to a person declared to be elected to a county office, in 
accordance with the official canvass, regular upon its face, the 
certificate is conclusive evidence of the right of the person hold- 
ing it to the office to which it shows him to have been elected, 
except in a proceeding where this right is directly in issue. To 
go behind a certificate thus issued and determine the correctness 
of the canvass involves the determination of the right of the 
holder of the certificate to the office ; this can not be done upon 
mandamus. 

And so in three cases in the twenty-fifth volume of 
the Louisiana Reports. Certainly whatever authority 
this volume may have, whatever respect or want of re- 
spect may be shown to it, it is not for those who have 
sustained before this tribunal the acts of the State gov- 
ernment of which the authors of this volume are part 
and parcel, to challenge the decision made by the court 
of which Mr. Ludeling was chief-justice. In The State 
v. Wharton, page 3, they say : 

Where two sets of officers claim to be the legal board of re- 
turning officers, it is difficult to conceive why this is not a judicial 
question. 

In Collin v. Knoblock and others, page 263, they 
say : 

The adjustment and compilation of election returns, determin- 
ing the number of legal and illegal votes cast for each candidate, 
declaring the result of an election and furnishing the successful 
candidate with the proper certificate, in short superintending and 
controlling all the details of an election, belong properly to the 
political department of the government. 

In The State on the relation of Bonner v. Lynch, 
page 267, they say : 

The defendant having been returned by the legal returning 
board of the State as elected judge of the fourth district court of 



[43] 

New Orleans, and upon that return the acting governor having 
issued a commission to him according to law, it can not be said 
that one holding an office under such a commission has intruded 
into or unlawfully holds the office. 

In the twentieth volume of Vermont Reports, page 
473, m tne case °f Overseer of the Poor of Norwich 
v. Halsey J. Yarrington, the court say : 

When a person acting as justice of the peace holds a commis- 
sion for that office from the governor, under the seal of the State, 
the court will not go behind that commission to inquire whether 
he had been duly appointed to that office by the General Assem- 
bly of the State or not. 

So in three cases in the State of Ohio. 

Mr. Commissioner Miller. That was not in a 
proceeding directly against him to invalidate the act. 

Mr. Hoadly. Of course if it had been a quo war- 
ranto ■, a certiorari^ or a contest, the question would 
have arisen judicially and properly; but it was not. It 
was a complaint in bastardy, where the woman for the 
space of thirty days had neglected to charge the putative 
father, and a controversy thereupon arose. 

So in three cases in the State of Ohio, in which it was 
decided by the supreme court of that State each time that 
a proceeding to try a title to an office was a judicial pro- 
ceeding. In one of these cases the supreme judicial 
court of the State of Ohio were called upon to pass upon 
one of the most important questions that ever arose in 
the State. It had been held in the county of Wayne 
that John K. McBride was elected probate judge of the 
county of Wayne by reason of the decision that the 
law allowing the soldiers in the field, out of the State of 
Ohio, to vote, was not in conformity with the Consti- 
tution of the State of Ohio ; and the cause was taken 
by writ of error to the supreme court of Ohio. The 
first question that court was called upon to decide was 



[44] 

whether this was a judicial question which could be 
removed by petition in error, in accordance with our 
forms of practice, to that court ; and the court decided 
that it was — that a proceeding to contest the election 
of John K. McBridewas a judicial proceeding, and the 
commission having been delivered to him, the decision 
and ascertainment of who was the duly elected probate 
judge of the county of Wayne was a judicial deter- 
mination and decision in that cause. To the same 
effect is the case of The State v. The Commission- 
ers of Marion County (14 Ohio State Reports, 578), 
and the case of Powers v. Reed and others (19 Ohio 
State Reports, 205, 206), in which the question that 
arose was whether the declaration of the result of 
an election, upon which depended the change of the 
county seat of Wood county from Bowling Green 
to Perrysburgh, or from Perrysburgh to Bowling Green, 
was a judicial determination, and it was argued before 
the supreme court of Ohio, as your honors will find by 
reference to that case, by one of the first lawyers in the 
Western States, a gentleman who had filled the highest 
places in the judicial department of the State of Ohio 
— I mean Judge Ranney — and whose abilities are equal 
to the positions he has held, that that question was a 
political question and not a judicial question. But his 
argument was overruled by the unanimous opinion of 
the court. 

So in the case of Morgan v. Quackenbush, which was 
cited to us the other day — I will read a passage or two 
— decided by Mr. Justice Ira Harris. I will read from 
page 72 of 22 Barbour: 

The certificate of a board of canvassers is evidence of the per- 
son upon whom the office has been conferred. Upon all questions 
arising collaterally, or between a party holding a certificate and 



[45] 

a stranger, if is conclusive evidence ; but in a proceeding to try 
the right to office, it is only fir 'i?na facie evidence. 

Again, on page 79 : 

If the certificate of the canvassers declaring Mr. Perry elected 
vested him with colorable title to the office, as I think it did, so 
that he had a right to enter upon the discharge of its duties, an- 
other effect of that decision was to exclude the defendant, Quack- 
enbush, as well as everybody else, from the office. They could 
not hold as tenants in common, each having a legal right to per- 
form its functions. If Mr. Perry became mayor de facto, the de- 
fendant Quackenbush, whatever his right, could not be mayor in 
fact at the same time. 

My proposition is that E. A. Cronin became vested 
with the title and the office, if it may be called an office, 
at least with the right to discharge the trusts and func- 
tions of an elector, by the certificate of the governor of 
Oregon, attested by the secretary of state under the 
great seal of the State, and that this made him de facto 
elector, so that the office could not be held at the same 
time as tenant in common or otherwise by John W. 
Watts. He was the incumbent ; and the only reply 
that I care to make to the argument which is founded 
on the statute of Oregon with regard to vacancies, is 
that the statute relates to and authorizes an incumbent 
to resign and does not authorize a claimant to resign, 
even though he be claiming de jure against an incum- 
bent de facto holding. I am not now alluding to the 
statute of Oregon with regard to the election of elec- 
tors, but to the statute in regard to filling vacancies in 
State offices. That I do not think your honors will 
find has any reference to this case at all under any cir- 
cumstances. 

Again, in Coolidge v. Brigham, 1 Allen, 335, Chief- 
Justice Bigelow, pronouncing the opinion of the whole 
court, said: 



[ 46 ] 

The magistrate before whom the action was originally brought 
was an officer de facto. He was not a mere usurper, undertaking 
to exercise the duties of an office to which he had no color of title. 
He had an apparent right to the office. He had a commission 
under the great seal of the State, bearing the signature of the 
governor, with his certificate thereon, that the oaths of office had 
been duly administered, and in all respects appearing to have 
been issued with the formalities required by the constitution and 
laws of the Commonwealth. He was thus invested with the ap- 
parent muniments of full title to the office. Although he might 
not have been an officer de jure, that is, legally appointed and 
entitled to hold and enjoy the office by a right which could not 
on due proceedings being had be impeached or invalidated, he 
was nevertheless in possession, under a commission -printa facie 
regular and legal, and performing the functions of the office under 
a color and show of right. This made him a justice of the peace 
de facto. 

So your honors will find, unless something can be 
discovered by more diligent search than I have made, 
and I have been very diligent, that when a man holds a 
certificate or a commission, whichever may be the ordi- 
nary evidence of title, and enters upon the possession 
of the office, he is an officer de facto, the office is full, 
there can be no other officer de facto. His title can 
only be impeached judicially. It may be taken from 
him by quo warranto ; it may be taken by certiorari ; it 
may be taken from him by proceedings to contest his 
election ; but in the absence of these three methods of 
proceeding his title is perfect against all the world. 
Where is the quo warranto against E. A. Cronin ? It may 
be said that there was a very short time in which to try it. 
No shorter, your honors, than was given in the case of 
Florida. Where is the certiorari ? Where was the pro- 
ceeding to contest? Here comes E. A. Cronin with 
the certificate of election under the great seal of Oregon, 
signed by the secretary of state, signed by the governor, 
and no judicial proceeding to impeach it. Is this tri- 



[47] 

bunal a judicial tribunal ? And were it a judicial tribu- 
nal, long ago the frauds that were offered to be proven 
to your honors in the case of Louisiana would have 
been heard and redressed. Were this a judicial tribunal, 
long ago the wrongs that were done in Florida would 
have been heard and redressed. But this is a legislative 
body, or part of a legislative body, delegates from the 
legislative body of the United States, without power to 
exercise any judicial function whatever. You can not 
try upon quo warranto ; you can not try upon certiorari ; 
you can not consider as upon proceedings to contest 
elections. The judicial power of the United States has 
been confided to the judges of the Supreme Court of 
the United States and of the inferior courts, and this is 
not the Supreme Court of the United States, nor any 
other court, inferior or otherwise. 

If it be thought that my argument is inconsistent 
with what has been argued by others in the cases of 
Florida or Louisiana, I have to reply that it is con- 
sistent with perfect respect for the decisions of this 
tribunal. It is not for counsel to exhibit such disre- 
spect to this tribunal as to attempt to overrule or over- 
throw its decisions. The object of this argument is to 
enforce the decisions of this tribunal and cause their 
application to the State of Oregon in such way that the 
decisions made in Florida and Louisiana shall not have 
the effect to reverse the judgment which the people of 
the United States on the 7th of November last pro- 
nounced. Your determination, which I have the right 
to cite as authority, written in your decisions, pro- 
nounced as the result of your conscientious examination, 
is here higher authority than any expression of persua- 
sive opinion, however cogent, that I might quote from 
the decisions of courts, however respectable, and there- 
fore I commend it to this tribunal as final and conclu- 



[48] 

sive evidence of the principles and rules of action which 
this tribunal ought to adhere to and apply in this case. 
But, if otherwise, I submit that, upon the merits of 
this controversy, waiving for the present the propositions 
I have made, your honors are required to decide in favor 
of the Cronin vote. Here I desire to call your hon- 
ors' attention to two propositions ; First, that the pa- 
pers inclosed with the certificate No. i are of no value 
as evidence by being in that certificate or otherwise un- 
less they are shown to be duly authenticated in con- 
formity with the laws of Oregon. I read from section 
78 of Freeman on Judgments : 

Nothing can be made a matter of record by calling it by that 
name, nor by inserting it among the proper matters of record. 

And from 27 Connecticut Reports, Nichols v. City 
of Bridgeport. This is not on my brief. The ques- 
tion was only called to my attention by hearing the de- 
bate of the objectors to certificate No. 1. 

Mr. Commissioner Garfield. The point you are 
making now is on your brief? 

Mr. Hoadly. It is not. I did not know what was 
contained in certificate No. 1 until this afternoon. I 
read from 27 Connecticut, page 465 : 

Between the reservation of the case and the term to which it 
had been continued to await our advice, it is obvious that there 
were no proceedings in the superior court, and that whatever 
proceedings took place in the case were in this court, and conse- 
quently that there were no proceedings, excepting the continu- 
ance of it, which it was the duty or province of the clerk of the 
superior court, or which it would have been proper for him to 
record as a part of the doings of that court ; and, plainly, it is 
only of the doings of that court that the plaintiff in error can 
complain on this writ of error. Such being the case, the reserva- 
tion by that court can not properly be regarded as a part of its 
record, notwithstanding it has been inserted, as if it were a part 
of it, by the clerk, or certified by him to be such ; for if it is not, 



[49] 

in its nature, a proper matter of record in the case, it can not be 
made such by the mere circumstance that it has been so inserted 
or attested. He can not make it a record, if, from its qualities, 
it is not so, either by treating it as such or calling it by that 
name. 

And, secondly, a canvass is not even prima facie evi- 
dence of eligibility, as held by the Court of Appeals 
of Kentucky in Patterson v. Miller, etc., i Mete. Ky. 
497 : 

The certificate which the examining board issues to a candi- 
date that he is elected to the office of sheriff — although conclu- 
sive evidence that he was elected thereto, unless his election be 
contested before the proper board — is not even frima facie evi- 
dence that he was eligible to the office. 

In the next place the question arises, going behind 
these matters and going to what, if evidence were re- 
ceived, might be called the merits of the controversy — 
the question arises, What is the law of Oregon — not 
the general American public law, but the law of Ore- 
gon with regard to the election of electors under cir- 
cumstances like the present ? It has been argued and 
seriously claimed that the governor of Oregon had no 
right to pass upon the eligibility of electors ; that 
he was bound to see the Constitution of the United 
States violated ; that he was imbecile, without power. 
My friends seem to deal, as their stock in trade, in want 
of power, imbecility. It was the imbecility of this 
tribunal, according to their argument, which prevented 
the examination of the truth of the fact with regard to 
Florida and Louisiana, and now it is the imbecility of 
the governor of Oregon which will enable this tribunal 
to lend its aid to a violation of the Constitution of the 
United States, although the governor refused to be a 
partaker in that wrong. Let us see. 

It is admitted that the law of Indiana is that where 



[50] 

there is an ineligible elector the governor not only may 
but must take cognizance of the fact and refuse the 
commission. It is admitted that this is the law of In- 
diana ; that the governor not only may but must recall 
a commission once issued when the evidence of ineligi- 
bility growing out of a constitutional disqualification 
is presented. If it be law in Indiana, why is it not law in 
Oregon ? It is law in Arkansas ; it is law in Missouri ; 
it is law in Rhode Island ; it is law in Massachusetts ; 
it is law in Oregon ; and the authority for the statement 
is the solemn adjudication of-the Supreme Court of each 
one of these States ; in all but two, of the Court, ju- 
dicially speaking, in a controversy between parties ; in 
two, speaking in obedience to the constitution and 
laws of the State in answer to a demand by the governor 
for judicial information. It is the law of Arkansas ; so 
held in two cases in the first volume of Arkansas re- 
ports (Pike's Reports), and one of those cases is that 
which Senator Kelly began to read this afternoon, page 
21, Taylor v. The Governor, which was a case where, 
by the law of Arkansas, a defaulter in office was dis- 
qualified. There it was held by the Supreme Court of 
that State that the governor had a right to take notice 
of the disqualification and withhold the commission, 
and not only that he had the right to do it, but that 
it was his duty to do it. In the same volume, in a 
later case, the exact proposition now under discussion 
was at great length considered. I refer to the case of 
Hawkins v. The Governor, pages 570 to 595. There 
it is said : 

Again, the executive is bound to see that the laws are faith- 
fully executed ; and he has taken an oath of office to support 
the constitution. How can he perform this duty if he has no 
discretion left him in regard to granting commissions? For 
should the Legislature appoint a person constitutionally ineligible 



[51] 

to hold any office of profit or trust, would the executive be bound 
to commission him? and that, too, when his ineligibility was 
clearly and positively proven? In such case the exercise of his 
discretion must be admitted, or you make him, not the guardian, 
but the violator of the constitution. What, then, becomes of his 
oath of office? 

Your honors, long, long ago, and by one of the great- 
est men who ever sat in judgment in the United States 
of America, a man whose word is law to-day, though 
the grass has been growing over his grave now for more 
than half a century, the law was thus laid down : 

Jt is argued — 

Said Chief-Justice Parsons, in 5 Massachusetts, 533 — 

that the Legislature can not give a construction to the constitution, 
can not make laws repugnant to it. But every department of 
government invested with certain constitutional powers must, in 
the first instance, but not exclusively, be the judge of its powers, 
or it could not act. 

In accordance with the same principle, in the great 
case of Martin v. Mott, 12 Wheaton, 29, the President 
of the United States was declared to be the final and 
conclusive judge whether a case of insurrection existed 
calling for the use of the military and naval forces of 
the United States for its suppression. So it will be 
found in the case of The State ex relatione Bartley v. 
Fletcher, 39 Missouri, 388 ; and if your honors will 
refer to the case of The State v. Vail, 53 Missouri, 97, 
which was cited this afternoon by Mr. Lawrence, you 
will find that the two cases can stand together. The 
case of The State v. Vail does not overrule the Indiana 
case of Gulick v. New, but cites it and distinguishes it. 
But let me read a passage from $3 Missouri to show 
that the case in Indiana is there cited and not dis- 
approved : 

But in the case in Indiana, it is conceded that where the candi- 



[52] 

date receiving the highest number of votes is ineligible by reason 
of a cause which the voters were not bound to know, such as non- 
age, want of naturalization, etc., the result is a failure to elect. 

It is unnecessary to determine whether it would be the rule, in 
any case of disqualifications ', whether fatent or latent. 

Now come back to the case of the State on the re- 
lation of Bartley v. Fletcher, 29 Mo. 388. The 
opinion was pronounced by Mr. Justice Wagner. After 
reciting that it is by the constitution of the State made 
the duty of the governor to commission all officers not 
otherwise provided by law, that this is clearly an ex- 
ercise of political power of a ministerial character, the 
court say : 

The governor is bound to see that the laws are faithfully exe- 
cuted, and he has taken an oath to support the constitution. In 
the correct and legitimate performance of his duty he must inev- 
itably have a discretion in regard to granting commissions ; for 
should a person be elected or appointed who was constitutionally 
ineligible to hold any office of profit or trust, would the execu- 
tive be bound to commission him when his ineligibility was 
clearly and positively proven ? If he is denied the exercise of 
any discretion in such case, he is made the violator of the Con- 
stitution, not its guardian. Of what avail then is his oath of 
office? Or if he has positive and satisfactory evidence that no 
election has been held in a county, shall he be required to violate 
the law and issue a commission to a person not elected, because 
a clerk has certified to the election? In granting a commission 
the governor may go behind the commission to determine whether 
an applicant is entitled to receive a commission or not where the 
objection to the right of the applicant to receive it rests upon the 
ground that a constitutional prohibition is interposed. Gulick v. 
New, 14 Ind. 93. 

The issuing of a commission is an act by the executive in his 
political capacity, and is one of the means employed to enable 
him to execute the laws and carry on the appropriate functions 
of the State ; and for the manner in which he executes this duty 
he is in nowise amenable to the judiciary. The court can no 



[53] 

more interfere with executive discretion than the Legislature or 
executive can with judicial discretion. 

The granting of a commission by the executive is not a mere 
ministerial duty, but an official act imposed by the constitution, 
and is an investiture of authority in the person receiving it. We 
are of the opinion, therefore, that mandamus will not lie against 
the governor in a case like this. 

So in the case in Maine, 7 Greenl. 497. In Maine 
the language of the constitution is that a majority of 
the votes shall elect, and yet to the opinion which was 
read by Senator Kelly this afternoon declaring that by 
that constitutional provision a majority of votes for 
eligible candidates is meant are signed the honored names 
of Prentiss Mellen and Nathan Weston, with their 
associate, Albion K. Parris. Tell me that the opinion 
that votes for ineligible candidates are void stands upon 
no authority in America, when the name of one of the 
greatest judicial lights that ever illumined the sky of 
legal jurisprudence in New England and of another 
second only to him are signed to that opinion ! 

This opinion comes first to us from one of the 
signers of the Declaration of American Independence. 
The first judgment ever pronounced in the United 
States to the effect that a million of people voting for 
an ineligible candidate can not defeat the mandate of the 
Constitution to elect, came from Samuel Chase, who 
long presided at the head of the judiciary of Maryland, 
and as a member of the Supreme Court of the United 
States, against whose temper much was said, but of 
whose judicial judgments there has passed into history 
no sound criticism whatever. 

It has been said here this afternoon that a few insig- 
nificant opinions are to that effect. Yes, they are the 
insignificant opinions of Samuel Chase, and Prentiss 
Mellen, and Nathan Weston, and Albion K. Parris, and 
Samuel E. Perkins, who, for a score of years has been 
a judge of the Supreme Court of Indiana, and now by 



[54] 

the vote of the people last October has entered upon 
another term of six years. The judicial opinions of 
these men are those upon which this doctrine rests. 
The time may come when justice, blind, deaf, and 
robbed of the rest of her powers, may be wafted into 
that Nirvana of intellectual inanition which the ma- 
jority of the human race believe is reserved for that 
which is absolutely perfect when its earthly work is done. 
On that day the names of these great jurists and the 
recollection of the wise counsels they have left us will 
be forgotten among those who walk in the ways of 
American jurisprudence according to the traditions of 
the fathers, because on that day, but not sooner, a vio- 
lation of the Constitution will become a muniment of 
office. 

But I was considering the question whether the gov- 
ernor had not furnished to us the final and conclusive 
evidence of the law of Oregon, and I had cited the case 
in Arkansas, the case in Missouri; I had not cited, but 
J do now refer your honors to the opinion of Mr. Jus- 
tice Cooley, as stated in his work on Constitutional 
Limitations, page 41. 1 had cited the opinions of the 
judges of Maine, in the seventh volume of Greenleaf 's 
Reports. I now ask your attention to the very recent 
action of the judges and executive of the State of Rhode 
Island, in the case of Corliss, which is precisely the 
action which was taken in the case of Cronin by the 
governor of Oregon. Had the governor of Oregon 
been invested by the Constitution of Oregon with the 
right to call for the opinions of the judges, and upon 
that call received them, the action of Rhode Island and 
the action of Oregon would have been precisely parallel. 
In Rhode Island the governor was confronted by the fact 
that George H. Corliss was a centennial commissioner 
and that his name was on the roll of those receiving the 



. [55] 

highest number of votes for electors. Did he give him 
the certificate? Did he refuse the certificate ? He re- 
fused. He called upon the judges of Rhode Island for 
their judgment and advice. I have furnished the law 
on this subject in my brief, and you will find, by refer- 
ence to it, that the advice was given to him not as a 
judicial judgment, but as advice for the guidance of his 
executive action, and he acted. He called the Legisla- 
ture together. He did not give the certificate to Corliss ; 
he withheld it from Corliss. He called the Legislature 
together, and they elected Slater who received the cer- 
tificate by force of the election by the Legislature. 
So in Oregon ; Senator Kelly read you this afternoon the 
letter from the Chief-Justice of Oregon, from which it 
appears that in the State of Oregon it has been judicially 
determined that the governor has a right, although a 
district attorney may be in office exercising the powers 
and discharging the duties of the office, to declare the 
office vacant, and where the Constitution has worked a 
vacation of the office by reason of the incompatibility of 
the two offices, to appoint a successor, and this action of 
the governor in Oregon, in the case of Gibbs v. Bellin- 
ger, was sustained by the supreme court of Oregon. The 
opinion would have been pronounced and published in 
the reports long ago but for the death of the lamented 
Judge Thayer, by whom it was expected to be written. 

So, I say that in Oregon as well as in Rhode Island, 
in Maine, in Arkansas, in Missouri, we are fortified in 
the opinion that the action of the governor in this case 
was proper, and that it was and is the action of the ex- 
ecutive, conclusive and final as evidence to this court of 
what the law of Oregon is. Why, consider for one 
moment. Suppose the governor had given a certificate 
to Mr. Watts, notwithstanding his disqualification, 
would not that have been evidence that Mr. Watts was 



[ 56 ] 

the elector P Would it not have been cited as evidence 
that the law of Oregon was that, notwithstanding the 
disqualification, Mr. Watts had a right to the certificate ? 
Was not the governor called upon, compelled to elect 
which horn of the dilemma, if it were such, he would 
choose ; which view of the law at least he would take ? 
Could he avoid it ? He must say, by giving the cer- 
tificate to Watts, " Notwithstanding the Constitution 
of the United States, and although the Constitution of 
Oregon says that I am to maintain the laws, notwith- 
standing this man is disqualified by law, he shall have the 
certificate. " What is the Constitution of Oregon in 
this particular ? Let me read the passage. Section 10, 
article 5, of the executive department says, that " he ,! 
(the governor) "shall take care that the laws be faith- 
fully executed." And he is sworn to support the Con- 
stitution of the United States and of Oregon ; yet it is 
said that he, bound to see that the laws were faithfully 
executed and to maintain the Constitution of the United 
States, violated his duty in not giving to one disquali- 
fied by the Constitution of the United States a certifi- 
cate of election ! 

In the next place there was no vacancy into which 
Watts could be elected. First, there was an officer, if it 
may be called such, an elector holding office de facto^ 
and I refer to the case read the other day by the learned 
senior counsel on the other side from the eleventh vol- 
ume of Sergeant and Rawle. I refer to the passages 
which were read by him to show that when there is in 
office an officer de facto he completes the whole cir- 
cumference of the office and occupies it all, and that 
there can be no vacancy and can be no intrusion upon 
him while he occupies, otherwise than by the action of a 
court of justice acting judicially. 

Also, there was no vacancy, for the reason that by the 



[57] 

laws of the United States contemplation is made of two 
contingencies, namely, a failure to elect, and a vacancy 
when the electors meet ; and this was the first of these 
two cases. Upon this subject I have already been 
heard in the Florida case by the Commission. 

My learned friend, if he will allow me to call him 
such (Mr. Evarts), informed us the other day that there 
is no choice ; we have to say office filled or office vacant ; 
there is no tertium quid, no via media in which our 
footsteps may be safely directed. But such is not 
the law of the Senate of the United States as held in 
this Chamber. I say that the Senate of the United 
States, from the foundation of the Government, has 
never deviated from the rule that the office of Senator 
can not be filled by the appointment of the governor 
of a State when the Legislature has failed to elect an 
incumbent during its session, as is shown by Lanman's 
case. Clark & Hall, 871. 

But I am told that the House decided otherwise. 
Aye, the House did decide, and if my friend (Mr. 
Matthews) had not stopped with his reading of his- 
tory just where he did, you would have learned all 
that the House decided in the case to which he re- 
ferred. I do not consider the decision of a partisan 
House in times of hot party politics as of much value, 
and I certainly do not count the decision which was 
reached by 118 yeas against 101 nays on the 3d day of 
October, 1837, giving to Claiborne and Gholson their 
seats as Representatives from the State of Mississippi, 
as authority when I find that in the list of negative 
votes are inscribed the names of John Quincy Adams 
and Millard Fillmore, of John Sergeant and Richard 
Fletcher, of John Bell and Thomas Corwin, of Caleb 
Cushing and R. M. T. Hunter, of Henry A. Wise 
and George Evans, of Elisha Whittlesey and James 



[ 58 ] 

Harlan and Thomas M. T. McKennan. That is a 
roll of names before which I bow as possessing greater 
authority than the whole list of the i*8 who voted in 
the affirmative. But the record of the House does not 
stop there. On Monday, the 5th day of February, 
1838 (page 160 of the sixth volume of the Congres- 
sional Globe,) on motion of John Bell, of Tennessee, 
by a vote of 121 yeas to 113 nays, the following reso- 
lution was adopted : 

Resolved, That the resolution of this House of the 3d of Oc- 
tober last declaring that Samuel J. Gholsoh and John F. H. Clai- 
borne were duly elected members of the Twenty-fifth Congress 
be rescinded, and that Messrs. Gholson and Claiborne are not 
duly elected members of the Twenty-fifth Congress. 

First, on adopting this as an amendment, the yeas 

were 119, the nays 112, and, secondly, on adopting the 

resolution as thus amended, the yeas were 121, the nays 

113. And this is "the sober second thought" of the 

House of Representatives of 1837 and 1838 on this 
question. 

Mr. Commissioner Edmunds. Is there not some- 
thing peculiar in the conclusion respecting the fill- 
ing of the office of a Senator by a governor growing out 
of the language of the Constitution, that where a va- 
cancy shall happen during the recess of the Legislature 
the governor may fill it by a commission, which shall 
hold until the next meeting of the Legislature ? Does 
not that have some bearing upon the subject ? 

Mr. Hoadly. No doubt. I do not claim that all 
the cases are precisely parallel. 

Mr. Commissioner Hoar. What was the point de- 
cided in that case ? Be good enough to state it. 

Mr. Hoadly. The point was that neither Clai- 
borne and Gholson nor Prentiss and Word were duly 
elected Representatives in the Twenty-fifth Congress. 



[59] 

Mr. Commissioner Hoar. That was not the point 
decided ; that was the fact. 

Mr. Hoadly. The point decided was that the reso- 
lution adopted on the 3d of October, to which reference 
was made the other day, awarding to Claiborne and 
Gholson their seats as members of the Twenty-fifth 
Congress, should be rescinded. 

Mr. Commissioner Hoar. My question was, what 
was the principle of law which was decided and for 
which you cited that case? 

Mr. Hoadly. It is extremely difficult to answer 
that question. There may have been differences of 
opinion among those voting. I do not cite this case 
as authority, but it having been cited in authority 
against me the other day, I state the whole of the facts 
of the case in order that it shall not be vouched in 
any longer as authority upon the other side. Of 
course, there was a political controversy, and my own 
opinion is, if I may be allowed to state it, that the 
party feeling of the supporters of Mr. Van Buren and 
the antagonists of his administration had much more to 
do with the result than any judicial considerations what- 
ever. 

Mr. Commissioner Hoar. Was it not a case where 
an extra session was called and gentlemen from Mis- 
sissippi were chosen before the general law permitted 
them to be chosen, on proclamation of the governor ? 

Mr. Hoadly. That was the case. 

Mr. Matthews. Allow me to interrupt a moment. 
I would ask you whether or not the resolution of 
the House of Representatives admitting Claiborne and 
Gholson to the extra session was not that there was 
a vacancy in the representation of Mississippi in the 
House of Representatives in consequence of the expi- 
ration of the terms of the previous members of Con- 



[60] 

gress, and the fact that the election for the members of 
the next Congress did not occur until the following No- 
vember, and did not the Governor of Mississippi cause 
that vacancy to be filled by a proclamation, in which he 
called upon electors to elect Representatives to fill that 
vacancy ? Was not the resolution admitting them as 
members of the Congress rescinded at the regular ses- 
sion because they were elected only to fill a vacancy? 

Mr. Hoadly. I will answer by saying that the 
whole statement is correct except the cc because." It 
was rescinded. Now, rescinding means withdrawing 
the original proposition, and that is the language used. 
It was not by virtue of a vote that, the vacancy having 
expired or the time having expired, therefore they were 
no longer members. But Mr. Bell's amendment was 
that the original resolution should be rescinded. 

This reminds me of another matter which I had al- 
most forgotten, and that is that my friends may pos- 
sibly cite against me the decision of the United States 
House of Representatives in what is known as the 
<c broad-seal case" from New Jersey, a debate in which 
the learned President of this Commission participated 
as a member of the House. My answer to that, if it 
be cited against me, will be that it was before a House 
who were the judges of the returns and qualifications 
of their own members; and a reference to Cooley, page 
133, will show that this is a judicial power expressly 
conferred upon the House. 

This reminds me also of a case famous in the annals 
of Ohio, and which ought to be famous in the annals 
of the Federal Union, where a question once arose be- 
tween the certificate of the returning officer and the ab- 
stract of the votes, in which the judgment arrived at 
was most conspicuous and most beneficent. In the year 
1848 the clerk of the court of common pleas of the 



[61] 

county in which I live, who, by law, was the returning 
officer, certified under the seal of the county that 
George E. Pugh, Alexander Long, and their associates 
were elected representatives to the Legislature of Ohio ; 
and the abstract of votes, of which a certified copy was 
taken, by Oliver M. Spencer and George W. Runyan, 
showed that they had a majority of the votes cast. 
The question was upon the constitutionality of the 
act of the legislature of Ohio dividing the county of 
Hamilton for purposes of representation in the State 
Legislature. For thirty days the State of Ohio was 
without a Legislature, in anarchy and confusion, with 
two conflicting parties contending for pre-eminence ; and 
at the end of thirty days, two gentlemen, still living, 
honored citizens of Ohio, men of neither the Whig nor 
the Democratic party, took the responsibility of judg- 
ing that the certificate of the clerk was the official evi- 
dence of the title, and upon it organized that Legisla- 
ture. 

Mr. ' Matthews. Let me ask you there whether 
or not both sides were not excluded until after the or- 
ganization ? 

Mr. Hoadly. That may be ; but the organiza- 
tion 

Mr. Matthews. Mr. Commissioner Payne can 
answer, probably. 

Mr. Hoadly. I accept your statement, as you were 
one of the authors of the illustrious act to which I 
allude, a partaker of its honors and of its responsi- 
bilities ; and among the many reasons for which the 
people of Ohio have to be thankful that you have lived, 
this is the most conspicuous. 

Mr. Matthews. I hope not. 

Mr. Hoadly. I will take your statement. At least 
the abstract did not secure the seats. What did that 



[62] 

act result in ? As its first result it made it possible 
for the black man, who before that time had been an 
alien and a vagabond in Ohio, to live on its soil a citizen 
of the State. It made it, in the second place, possible 
for him to be heard in a court of justice as a witness 
against a white man. In the third place, it made Salmon 
P. Chase Senator of the United States from the State 
of Ohio, to begin that illustrious career which ended in 
the chief-justiceship of the Supreme Court of the United 
States, in which he died. Every man in Ohio who 
joined in this act has been honored by the people of the 
State. George E. Pugh became attorney-general and 
senator ; Salmon P. Chase twice governor by the votes 
of his then opponents. I think, as a citizen of Ohio, I 
have no reason to be ashamed, of the doctrine that the 
broad seal of the county of Hamilton is better evidence 
of title to office, even though the clerk in issuing it de- 
termine against the constitutionality of a statute, than 
the abstract of votes copied and certified to by him. 

There was no vacancy in the office in Oregon ; I come 
back to that. A vacancy may exist in Oregon when 
" occasioned by death, refusal to act, neglect to attend, 
or otherwise." My learned friend, Mr. Lawrence, says 
the word "otherwise" means every other possible manner 
whatsoever. It is a cardinal rule in the interpretation 
of statutes that every word must have its force, and 
that words will not be treated as superfluous ; and yet, 
by this argument, the learned gentleman has eliminated 
all these words, including the word cc otherwise," from 
the statute. He defines the word cc otherwise " so that 
it might as well be obliterated in fact from the law in 
which it is written. 

And if there shall be any vacancy in the office of elector occa- 
sioned by death, refusal to act, neglect to attend, or otherwise — 

This means that there are some vacancies which the 



[63] 

electors present may not proceed to fill. It is not cc if 
there shall be any vacancy in the office of elector, the 
electors present shall immediately proceed to fill it," 
but it is " if there shall be any vacancy occasioned by 
death, refusal to act, neglect to attend, or otherwise. " 
This is the class of vacancies they may fill; not every 
vacancy. If it had been every vacancy they might fill, 
then the words, " occasioned by death, refusal to act, 
neglect to attend, or otherwise," would have been omit- 
ted. In order that these words may have their proper 
force, the word " otherwise " must be construed in its 
ordinary and normal legal signification, <c of other like 
manner ;" noscitur a sociis is the rule. General words are 
restrained by the fitness of things. We have in the 
statutes of Ohio a law by which a railroad company 
may acquire and convey at pleasure all real or personal 
estate necessary or proper; and yet the Supreme Court 
of Ohio, in 10 Ohio State Reports, the case of Coe v. 
The Columbus, Piqua and Indiana Railroad Company, 
have said that although the language of the statute is 
general, and they may convey any real estate necessary 
and proper to be acquired by them, yet they can not 
convey one foot of the land which is pledged to the 
maintenance of the public uses for which they are estab- 
lished. They can not convey the track ; they can not 
convey the right of way except by mortgage; and that 
is because the general words are restrained by the fitness 
of the subject-matter. 

"Occasioned by death, refusal to act, neglect to at- 
tend, or otherwise," does not mean "occasioned by 
every possible circumstance on earth." If it did the 
law would have said so. It means "occasioned by 
these methods," and not occasioned otherwise except 
by these methods or the like unto them, in like man- 
ner ; death 



[64] 

Mr. Representative Lawrence. Death or something 
like death. 

Mr. Hoadly. Death, or something which comes 
within the chain of thought which connects these three 
enumerated classes, consisting of occurrences happening 
after election. The act of Congress makes the distinc- 
tion. It says if there is a failure to elect, the Legisla- 
ture may decide what provision shall be made. If 
there is a vacancy when the college meets, the Legisla- 
ture may provide for it. These are all cases of vacancy 
occurring after the event of the election, and do not 
contemplate a vacancy which occurs by reason of what 
I should call the non-filling of the office occasioned by 
reason of there being a non-election. 

Suppose there had been a tie vote. Is that £t other- 
wise?" Does non-election by a tie vote create a vacancy 
within the meaning of that statute ? That tests the 
question. I say not. Why not? Because ''occa- 
sioned by death, refusal to act, neglect to attend, or 
otherwise" are words that can not be dispensed with 
and necessarily involve the conclusion that there are 
some methods of occasioning vacancy which are not 
within the statute. It would have said cc if there be 
any vacancy the electors present may fill it " had it been 
supposed these words would be interpreted as now 
claimed. A tie vote involves a vacancy or what may 
be called by way of courtesy a vacancy. It is a failure 
to elect which is not contemplated by this statute and 
not provided for by this statute, and that was the case 
in the State of Rhode Island of Corliss or might have 
been. It was alluded to in the decision of the State of 
Rhode Island. Your honors will find by referring to 
the brief which we have on file a large number of cases 
in which the same principle is upheld. 



[65] 

Mr. Commissioner Miller. What do you make of 
the words u refusal to act ? " 

Mr. Hoadly. An elector who has been elected 
and refuses to act creates a vacancy. I consider the 
word "otherwise" to refer to cases which occur after 
there has been a complete election, just as section 
133 of the Revised Statutes of the United States pro- 
vides. These are all cases coming within this 
section. 

Mr. Commissioner Miller. You do not think it 
necessary that he should have accepted or entered on 
the duties of the office? 

Mr. Hoadly. The words, "refusal to act," avoid 
that difficulty. If it were not for those words and the 
power of the Legislature to provide in that way, I think 
the rule would have been otherwise. But where there 
is an elector in office de facto, as Cronin was, another 
party cannot make a vacancy by refusing to act. The 
ordinary rule is that in order that a party may resign 
he must be an incumbent. So Cockburn, chief-justice, 
in The Queen v. Blizzard, Law Reports, 1 Q. B., $$, 
held; so Sawyer, chief-justice, now Judge of the United 
States Circuit Court, held, in People v. Tilton, 37 Cali- 
fornia, 617 ; so it was held in Miller v. The Supervisor of 
Sacramento county, 25 California, 93 ; so in Common- 
wealth ex rel. Broom v. Hanley, 9 Pennsylvania State 
Reports, 513. And it is held in an opinion which I will 
hand to your honors, received to-day by mail, of the Su- 
preme Court of Missouri, a case printed in the Central 
Law Journal of St. Louis, volume^ number 7, on Friday 
last, page 156, (in accord with the views to which I have 
alluded), that the office had been once rilled, and therefore 
there was a vacancy ; as they cite with approval the case 
of The State v. Lusk, 1 8 Missouri, 233^ to the effect that 



[ 6 <3] 

if the office had not been filled by the qualification of the 
officer before his death, there would have been no vacancy. 

I come to consider the remaining question in the 
case. I say that by Oregon Law, as shown by the certi- 
ficate of the Governor who was obliged to act, as well 
as by the better opinion, the weight of authority, if not 
the number of cases in the United States, the mandate 
to elect is of such paramount authority that the people 
may not disobey it by voting for a disqualified can- 
didate. My friends on the other side, in order to main- 
tain their proposition, must not only stand upon a 
violation of the Constitution of the United States by 
the election of a disqualified person; they must also 
contend that a plurality may violate the Constitution 
and prevent an election. That is their proposition ; 
and by making their candidate, Watts, an officer de facto 
who did not hold the certificate de facto, they thus manu- 
facture this violation of the Constitution of the United 
States by a plurality into a muniment of title to office. 

We have several things to consider here : first, the 
Constitution of the United States says, cc thou shalt 
elect," to the people of Oregon. If I may, without 
irreverence, borrow the simile, the first great command- 
ment of the gospel of American liberty is " thou shalt 
elect," and the second is 4C thou shalt not elect a disqual- 
ified candidate." The plurality may elect ; and if the 
plurality may elect, and electing a disqualified candidate 
defeats an election, then the plurality may defeat an 
election. What is more than this, it is perfectly easy 
for more than three candidates each to receive a majority 
of votes in the State of Oregon. I will take the liberty 
to ask your honors' attention to a supposition which 
fairly illustrates the principle we are considering. Thus 
we may suppose that in the State of Oregon, where there 
were three electors to be chosen, 20,000 votes may be 



[67] 

cast, divided among six candidates: A. B, and C receive 
each 9,800 votes; D, E, and F receive 9,700 votes. 
The remaining 500 votes may be thus distributed: To 
A, B, and D, 200 votes ; to A, C, and D, 200 votes ; 
to B, C, and D, 100 votes. The result will be: For 
A, 10.200; for B, 10,100; for C, 10,100; and for D, 
10,200. Supposing now, that A were disqualified by 
holding a Federal office, who would be elected, and 
which rule ought to be adopted ? That which rejects 
A as disqualified, and B and C as not elected, by reason 
of the votes for them having resulted in a tie, and only 
D elected ; or that which rejects A as disqualified and 
returns B, C, and D as elected ? 

This is not very likely to happen at this time, when 
electors are mere automata to register the wishes of their 
constituents ; but when there shall be three parties 
again, if that may ever be, and that shall happen which 
happened in Pennsylvania, that two of them coalesce 
on the same list of electors, with the intention of di- 
viding the votes of the electors according to the heads 
of the tickets, as was proposed to be done in Pennsyl- 
vania in 1856, this might very easily happen ; and yet, 
according to the proposition of my friends on the other 
side, the result would be that the man having the high- 
est number of votes was elected though disqualified. 
Now, the principle, to govern us, must be consistent : 
First, with the constitutional mandate that the State 
shall appoint. That is the mandate of the Federal Con- 
stitution ; it is the mandate of the Revised Statutes ; 
it is the mandate of Oregon. Secondly, with the con- 
stitutional inhibition that no person holding an office 
of trust or profit under the United States shall be ap- 
pointed. Thirdly, with the rule that a majority vote 
is not necessary, but a plurality suffices for election. 
Fourthly, with the possibility to which I have just ad- 



[ 68 ] 

dressed my attention. ' And, fifthly, to the fact that 
upon the views of their work entertained by those who 
made the Constitution, the candidates for electors do not 
run, like rivals for the office of sheriff, against each 
other, but the choice is made by selection of the suc- 
cessful candidates out of the whole list of those named 
in that connection. 

I have referred your honors to the decision in Maine. 
It so happens that in the State of Maine that opinion 
of Chief-Justice Mellen, Chief-Justice Weston, and 
Judge Parris became crystallized by the legislative de- 
partment of the State as one of the laws of the State as 
early as 1840, and has remained the law of the State of 
Maine until now, and my brief refers your honors to 
this law of the State of Maine by which ballots cast for 
ineligible persons are not to be counted. It is only in 
ignorance of this opinion and this legislation that Spear 
v. Robinson, 29 Maine, 531 (a decision really directly 
in favor of my proposition), and the opinion of the 
judges, 3% Maine, 597 (which does not touch the point), 
have ever been cited against it. 

It is the law of the State of Massachusetts, God bless 
her. I have here a book printed by the authority of the 
State of Massachusetts, being Reports of Election Cases 
in Massachusetts. This book came from the Legislature 
of Massachusetts, and in it is a decision in 1 849 by a com- 
mittee, approved by the vote of her Legislature. This 
book was compiled by Judge Luther S. Cushing and his 
associates, by direction of the Legislature, and printed 
by the State for the information of her people and people 
beyond her borders, in which it is stated as the law of 
Massachusetts that; 

There is no reason why a person who votes for an ineligible 
candidate should not be put upon the same footing with one who 
does not vote at all, as in both cases the parties show a disposition 



[69] 

to prevent an election, and both of them show an unwillingness 
to perform their duty by aiding to promote those elections which 
are absolutely essential to the existence of the government ; for 
if every voter refrained wholly from voting, or voted for an in- 
eligible candidate, the result would be the same, no choice ; and 
although it is true that no penalty is attached bv law to a neglect 
of this obligation of voting, yet the obligation is not the less plain 
for that, and the committee believe it to be a duty too important 
to be neglected and too sacred to be trifled with by voting for fic- 
titious persons or ineligible candidates. 

Maryland spoke in 1794, in the case of Hatcheson 
v. Tilden & Bordley, 4 Harris & McHenry, 279 ; and 
in 1865 and 1866 the Legislature of Maryland, acting 
once in their legislative capacity, and acting once in 
their judicial capacity, followed, in the cause of loyalty 
and of reconstruction upon loyal principles, the rule 
which Chief-Justice Samuel Chase laid down for their 
government. I have the house journal and documents 
of the State of Maryland for 1865, which have been 
kindly furnished me by a friend in Baltimore in order 
that I might present the original authorities to your 
honors. In the Constitution of Maryland, as it was in 
1865, was the following provision : 

If any person has given any aid, comfort, countenance, or sup- 
port to those engaged in armed hostility to the United States, or 
has, by any open deed or word, declared his adhesion to the 
cause of the enemies of the United States, or his desire for the 
triumph of said enemies of the United States, he is disqualified 
from holding any office of honor, profit, or trust, under the laws 
of this State. 

Hart B. Holton, who had not a majority or plurality 
of the votes cast for senator of Howard County in 1 $6$> 
contested the seat of Littleton Maclin, who had the 
majority of the legal votes of the voters of Howard 
County, and on the principles enunciated by Chief- 
Justice Chase, because of the disloyalty of Littleton 
Maclin, Hart B. Holton gained the seat and sat as a 



[70] 

senator from that county. In 1866, before the house 
of delegates, acting judicially, George E. Gambrill con- 
tested the office of Sprigg Harwood, as clerk of the 
circuit court of Anne Arundel County, on the ground 
of constitutional ineligibility, caused by an increase in 
the profits of this clerkship, while Harwood was a 
senator from Anne Arundel County in 1865. The 
committee said that Harwood was ineligible, that it 
"must be presumed to have been known by every 
voter," that in a case like this it would be highly inex- 
pedient to submit this matter to another election, and 
on their report the incumbent of the office was ousted and 
the contestant inducted into the office of clerk of Anne 
Arundel County. 

So in the States of Missouri and Mississippi, by con- 
stitutional amendments, introduced and adopted for the 
purpose of securing the reconstruction of those States in 
accordance with the loyal sentiment which demanded the 
maintenance of the Federal Union at all hazards, it 
was provided that disloyalty should cause such disquali- 
fication that votes given for disloyal persons in Missis- 
sippi and Missouri should not be cast up or counted as 
ballots. This principle, springing from our revolu- 
tionary fathers and helping the great work of recon- 
struction, helping to secure the maintenance of the 
Federal Union and the principles of loyalty to the 
Federal Union, has so soon as this become so odious 
to those who maintained and espoused it so recently 
that by its rejection is to be elected a President of the 
United States! What is there to the contrary? 
Six, or eight, or ten obiter dicta, and that is the whole 
of it, and not one of them in conflict with the principle 
for which we contend. Why, your honors, the presump- 
tion omnia bene et rite esse frasumuntur donee probetur in 
contrarium, sustains the action of the governor of Ore- 



[71] 

gon until there shall be produced in evidence something 
to show that the governor of Oregon was not justified 
in the course which he took. We are justified, then, 
in presuming — we need not the evidence which we offer 
— that the fact of disqualification existed, and was so 
notorious as to work the law of disqualification. There- 
fore we are within the rule of Furman v. Clute, in 50 
New York, 451 ; therefore we are within the rule which 
has been adopted in the case of Commonwealth v. Cluly 
in $6 Pennsylvania State Reports, 277 ; so that we are 
within the rule which was adopted in the obiter dicta to 
which I shall refer. 

Mr. Commissioner Edmunds. Did not the court in 
50 New York hold also that every v'oter must know 
what the law was ? 

Mr. Hoadly. Precisely so; and it would be a fit- 
ting commentary upon the serious character of the sug- 
gestions which have been made in disparagement of the 
course taken by the governor of the State of Oregon if 
it should be held that his course was improper in con- 
sequence of the fact that the 15,000 people who voted 
for John W. Watts were presumably ignorant of the 
Constitution of the United States. Of a lurking 
statute hidden in the corners of a statute-book, like the 
statute that governed the disqualification of the super- 
visor of Schenectady, it may well be that the voters 
might be ignorant, but of a disqualification inherent in 
a constitutional provision which enables the State to 
appoint electors no man ought to say that he is ignor- 
ant. No man can be heard in any court of law in any 
such case to say, I submit, that he is "ignorant." 

Three times Indiana has promulgated the principle 
which I have suggested. It has been espoused by 
Judge Cushing in his book, Sections 177, et seq ; it is 
espoused by Grant on Corporations, 208 ; it is the law 



[72] 

of the English and Irish cases, all of which are referred 
to in the brief, that a man might as well vote for the 
man in the moon, or, as Governor Grover in his decision 
says, for Mount Hood, as to vote for a disqualified can- 
didate knowingly ; and what is there to the contrary ? 
As I said, the Pennsylvania case concedes that a vote 
given with knowlege for an ineligible candidate can not 
be counted. In the cases in California, in the first one, 
Melony v. Whitman, 10 Cal. 38, the question did not 
require or receive decision, for the majority of the court 
found that the officer was not ineligible. In Saunders v. 
Haynes, 13 Cal. 145, the other case, it is assumed 
that a majority of those voting by mistake of law or 
•fact happened so to cast their vote. The case in Wis- 
consin (State v. Giles, 1 Chandl. 112,) which has been 
considered the leading case on the other side, is as pure 
a piece of gratis dictum as ever was pronounced in a court 
in this country. After stating that the officer was not 
ineligible, the Court go on to say : 

Such being the opinion of the court, it is unnecessary to pass 
on the second question whether in the event of the person receiv- 
ing the highest number of votes being ineligible, the person hav- 
ing the next highest number is elected. . 

Then, I will not say by the same force with which I 
address the pupils in my law school, but by the same 
judicial authority that I have the right to express when 
I address students in a law school, the court go on, 
having decided that it was not their duty to say anything 
about it, to expound the law, in order that on future occas- 
ions their successors may have the benefit of it, and in 
State v. Smith, 14 Wisconsin, 497, their successors get 
the benefit of it, and adopt it without giving any reasons. 
Judge Lumpkin, in Georgia, State v. Swearingen, 12 
Geo. 23, followed the same wise example, deciding that 
no restriction of residence "was imposed on the voters 



[ 73 ] 

of the young but rapidly growing town of Oglethorpe in 
their selection of a suitable person to fill the office of clerk 
and treasurer." Having decided that there was no such 
ineligibility, he proceeded to lay down the law of the 
court obiter in these words : 

Under no circumstances could we permit the informant to be 
installed into these appointments. 

In Missouri the first case, State v. Boal, in 46 Mis- 
souri, 528, is in accordance with the views which we 
maintain. 

As regards the votes cast for the defendant, they were nugatory. 
It was as though no such votes had been cast at the election. 

And the case of The State v. Vail, 53 Mo. 97, does 

not withdraw this limitation, but simply confines it to 

cases of latent disqualification, saying : 

It is unnecessary to determine whether it would be the rule in 
any case of disqualifications, whether patent or latent. 

The case in Tennessee, Pearce v. Hawkins, 2 Swan, 
87, decides that the votes are illegal and void, which is 
a case, as far as it goes, in our favor. The case in 
Michigan, People v. Molitor, 23 Mich. 341, is dis- 
posed of by an admission in pleading; the court say 
the party admitted his case away in pleading. The case 
in 21 Louisiana Annual Reports, 289, Fish v. Collins, 
decides, with modesty, I suppose, if there be such an 
article in the Supreme Court of that State, that it was 
unnecessary to express an opinion whether the votes 
cast for a person notoriously known to be ineligible 
should be rejected or not, as no such allegations were 
made in the petition. The cases in 18 and 20 Louis- 
iana Annual Reports, 114, State v. Gastinel, are to the 
same effect. 

Whatever might have been his rights had he contested the elec- 
tion of the defendant in accordance with law, we are not called 
upon to say. 



[74] 

The case in Mississippi, Sublett v. Bedwell, 47 Miss. 
273, is nearest to a case in opposition to the principle 
for which I contend, of any in the United States. 
There it is said : 

If the majority make choice of a candidate under some per- 
sonal disability disqualifying him from taking and enjoying the 
office, the utmost that can be said of it is that there has been no 
election. 

u Personal disability," not the disability of the State 
to appoint, but personal disability applicable to the can- 
didate. 

In Rhode Island, as is shown by a letter from Wil- 
liam Beach Lawrence, of which I have reprinted a large 
portion in my brief, the opinion on this proposition is 
purely obiter dictum^ there having been a tie between the 
three highest democratic candidates for elector, and, 
therefore, the result which was reached by the governor, 
that there was no vacancy, a failure to elect being the 
necessary result, and not the result produced by the 
reasons given by the supreme court. 

These are all the cases in the United States. I be- 
lieve I have referred in my brief to every case within 
the borders of this land and of Great Britain, except one 
case in Coxe's Reports, page 318, The State v. Ander- 
son, which went off on the proposition that in certiorari 
there was a discretion, but the court would not exercise 
that discretion to displace a man who was disqualified, 
because it would leave the office vacant, and did not al- 
lude at all to the question whether there was any antag- 
onist or whether his antagonist received any votes. 

And if we look beyond the United States, and as- 
sume that the common law of England prevails in Ore- 
gon, there is nothing to the contrary of our view. 

Now, testing by principle, I say Cronin was elected. 
Testing by method, would a quo warranto have run in 
favor of Watts ? Would not the disqualification have 



[75] 

killed his title ? Could he by quo warranto or certiorari 
or contest have obtained the place ? Cronin held it de 
facto; Watts was a postmaster disqualified. Test it 
now by the rules of method under laws similar to that 
which we have in Ohio and many of the States in which 
a quo warranto may be supported at the instance of the 
competing candidate, and pursued, not merely to the 
ousting of the incumbent, but to the induction of the 
man who ought to have been successful ; and on what 
principle of law could John W. Watts, who did not 
hold this commission, have got from any court of jus- 
tice in this land the title to which he now lays claim ? 
Cronin held the title ; Cronin cast the vote ; Watts was 
not elector de facto , and it is a question whether he was 
de jure. Ask yourselves, learned judges, whether any 
one of you sitting in quo warranto would have awarded, 
as against the officer de facto \ possession of the office to 
a man whom the Constitution of the country said should 
not hold it ? On principle the mandate to elect was 
fulfilled by the election of Cronin. If Watts be called 
elected, the mandate to elect was disobeyed. If Watts 
be called elected, the mandate not to elect a disqualified 
person was disobeyed. Tested by method and by the 
rules which apply in courts of justice, tell me how any 
lawyer can say that a disqualified candidate can seize an 
office by any process known to the laws of our country 
out of the hands of one who holds it de facto , even al- 
though that one be not elected ? He may have a judg- 
ment that the office is vacant ; that is all he can have, 
and that is the end of the whole thing as far as he is 
concerned. 



Mr. President and Gentlemen of the Commis- 
sion : Into vour hands, assisted by the enlightened 
labors of those who are to follow me in argument, I 



[76] 

commit this cause/ No cause was ever submitted more 
momentous in its issues or its consequences. It in- 
volves the question whether government of the people, 
by the people, for the people, shall be suspended in the 
Executive department of these United States for the 
next four years. 

At the election in November last, Samuel J. Tilden 
and Thomas A. Hendricks received for President and 
Vice-President of the United States a vast majority of 
the total popular vote, a majority of the legal popular 
vote in the States of Louisiana and Florida, and one 
certificated electoral vote in the State of Oregon. Your 
sense of duty has prevented your listening to the testi- 
mony which would have established their title to the 
electoral votes of Louisiana and Florida. This was be- 
cause you possessed no judicial power whatever. Had 
you been endowed with any portion of the judicial 
power of the United States, there is no doubt, that, be- 
fore this time, its exercise would have relieved the people 
of the United States from the serious apprehension of 
great danger, of danger that, for four weary years, the 
choice of the American people shall be frustrated, and a 
usurper sit in the seat of Washington and Jefferson, of 
Jackson and of Lincoln. 

if you adhere to the principle which has thus far 
guided your action, this danger will be averted. With- 
out the exercise of judicial power, you can not deprive 
Tilden and Hendricks of their Oregon vote, or award 
it to Hayes and Wheeler. 

You have been likened unto judges in Israel, and 
warned not to make your proceedings so intolerably in- 
convenient that the people should desire a king. The 
people, whose cause I represent, will never, never, 
never wish for a king; but I may remind the counsel 
that it was not because the action of their judges was 



[77] 

inconvenient that the people of Israel desired a king, 
but because their judges "perverted judgment." 

Conscript Fathers of the American Republic, the 
flower and crown of the enlightened jurisprudence of 
pagan Rome were the two maxims, " Ubi jus, ibi re- 
medium" " Suum cuique tribuito" May it be the happy- 
fortune of our nation and of yourselves, as the ex- 
pounders of its constitutional powers, not to lessen the 
force or diminish the universality of their application. 

So shall Time, the corroder and consumer of all finite 
things, pass your work by untouched, and after genera- 
tions, as they may meet with questions of disputed 
succession, shall point to and follow it, saying, u Be- 
hold the great example of our fathers. In their ways 
will we walk, for they are the ways of righteous judg- 
ment and of peace;" and the arms of them who serve 
liberty in all the lands shall be strengthened, for they 
shall know that in monarchies questions of succession 
are resolved by the sword, in republics by justice. 

So shall Art, which keeps in eternal remembrance the 
realities of things, still delineate Justice with bandaged 
eyes and open ears, and history shall not record that 
Justice here, at the expense of her hearing, regained her 
sight. 



I R . Ii 'OR 



